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FORTESCUE

DE LAUDIBUS

LEGUM ANGLIZ.

Digitized by the Internet Archive
in 2007 with funding from.
Microsoft Corporation

http://www.archive.org/details/delaudibusleguma0Ofortuoft

FORTESCUE
DE LAUDIBUS
LEGUM ANGLIZ&.

THE TRANSLATION INTO ENGLISH

Published a.v. MDCCLXXV.

AND

THE ORIGINAL LATIN TEXT.

WITH NOTES. %

=e ee

By A. AMOS, Esa.

OF LINCOLN’S INN, BARRISTER AT LAW, AND LATE FELLOW

OF TRINITY COLLEGE, CAMBRIDGE.

CAMBRIDGE:
Printed by J. Smith, Printer to the University ;
FOR JOSEPH BUTTERWORTH & SON, LONDON; |

J. COOKE, ORMOND QUAY, DUBLIN; 37. CLARK, PARLIAMENT SQUARE,
EDINBURGH; AND J, DEIGHTON & SONS, CAMBRIDGE,

1825

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TO.
THE REVEREND

THE MASTER ann THE FELLOWS

OF

TRINITY COLLEGE, CAMBRIDGE:

GENTLEMEN,

I wave presumed to inscribe this Work
to you, which I have prepared during my
residence in your College, in the intervals of
relaxation from my profession that have
been afforded me. When I observed the ad-
vancement in every department of learning
which the members of your illustrious Society
were daily atchieving, I also felt desirous of
endeavouring to contribute to the improvement
of our National Jurisprudence, by republishing
and illustrating the writings of an eminent

vi

Judicial character, whose title to the admiration
of his Countrymen renders him worthy to be
ranked with your Lord Bacon, and your Sir
Edward Coke. I do not anticipate any praise
for that part of the publication which is my
own, but shall be highly gratified by your
accepting the dedication of it as a testimony
of my ‘gratitude tind friendship.

I have the honor to be

with the highest respect,

* your most obedient Servant,

ANDREW AMOS.

PREFACE.
Sn ieee

A new edition of Fortescue’s treatise ‘“ De
Laudibus Legum Anglie” appeared to the Editor
an useful undertaking, not only because he consider-
ed that copies of the work had become scarce and
expensive, but also on account of the intrinsic value
of the matter it contained. In the present edition
will be found the Translation published in the year
1775; together with the original composition in
Latin subjoined. A few notes are added; in which
an endeavour has been made to point out rather
than to pursue those channels of investigation which
seemed requisite for elucidating the text, or for
illustrating it by shewing its relation to the History,
Antiquities, and Jurisprudence of the Country.

In examining the merit of this small tract of
Fortescue, and the claim which it possesses upon
public attention, it will be remembered with what
respect it has been cited by the most eminent per-
sonages, whose names adorn our judicial annuals,
Coke, Somers, Holt, Blackstone. In many of the
most momentous questions which have been agitated
in Parliament and in the Courts of Westminster
Hall, a powerful appeal has been made to the autho-
rity of this treatise. Neither can the character or the
situation of the Author fail of imparting an additional

Vili PREFACE.

interest to it. He was a person who filled the office
of Chief Justice of England with great reputation,
during a considerable period of the reign of Hen. VI.
When he was composing his work “ De Laudibus
Legum Angliz,” he occupied, like Clarendon,
the station of Lord High Chancellor, by the ap-—
pointment of a Sovereign who had been deprived
‘of his throne: And both those illustrious legal
characters were conspicuous for making the in-
struction of their countrymen the object of. their
meditations in exile. Fortescue conceived that he
was pursuing a judicious course: for securing the
future happiness of the English Nation, in forming
the character of the Heir Apparent to the throne,
and acquainting him with the duties of a Patriot
King: a task which in later times, even. Hampden
did not look upon as derogatory to his talents, or
“incompatible with his independence.

Philosophy has undergone almost a new birth
since the period when Fortescue wrote; education —
‘has received much improvement; the stores .of
Jearning have been augmented; experience has
instructed and enlightened the present generation
by the example of the ages that are past: It will
not therefore .be thought surprising that the re-
flections which the wisest of our ancestors have
transmitted to us should often appear to our under-
standings puerile or ridiculous, the result of con-
tracted or prejudiced views. Nevertheless. the

PREFACE. ix

opinions and feelings of antiquity must be made
an object of research, if we wish to arrive at an
intimate knowledge of laws, considered as a criterion
of the wants and the sentiments of a people. Lord
Bacon has remarked that historians afford us a very
imperfect light in this enquiry, ‘“‘ Versatur infelicitas
quedam inter historicos vel optimos, ut legibus et
actis judicialibus non satis commorentur, aut si forte
diligentiam quandam adhibuerint, tamen ab authen-
ticis longe varient.”.. Whereas the writings of
Fortescue present an interesting picture, drawn
from what was passing under his immediate view,
of the political, moral, religious and physical situ-
ation of the Country connected with its juris-
prudence. It is from these circumstances, more
than from books of Statutes and Reports, that the
origin. of national laws is to be discovered, their
spirit and meaning to be collected, their ex-
cellence to be appreciated, and the blind veneration
which often attends them to be dissipated. A pre-
vious enquiry concerning the original sources of
national law is surely necessary for unfolding the
design and the principles of our earlier legal institu-
tions, and must afford great facilities towards the
comprehending those parts of the present fabric of our
Jurisprudence, of which the construction is of an
ancient date, or which have been fashioned after the
ancient model. Considering that in the present
treatise of Fortescue, are laid before the reader the

xX PREFACE.

materials which may assist in composing a_philo-
sophical history of the law, whilst the sentiments
of our ancestors are there recorded upon the deeply
important subjects of religion, government, and the
administration of Justice, we shall perhaps not think
the value of the work to have been overrated by
Sir William Jones, who ascribed to it the precious-
ness of gold *.

The benefit resulting from the perusal of For-
tescue’s treatise will be deemed of paramount
utility, if it has the effect of cherishing in the
minds of reflecting men those principles of govern-
ment and civil obedience, which it inculcates, and
which are-admirably calculated to unite a Sovereign |
_ and his people by the ties of mutual interest, and
of reciprocal protection and dependence. If
these principles were first promulgated by Fortescue

* Sir W. Jones, in recommending to a learned foreigner
the works from which a knowledge of the English Constitution
might be best collected, says, )

Alter, libellus est, de quo dici potest id quod de fluvio
Teleboa. scripsit Xenophon, Meyas pev ov, xados Se. Auctor
fuit Anglize Cancellarius sub rege Henrico sexto, et ob turbulenta
tempora, cum alumno suo principe Edwardo, in Galliam: fugit ;
ubi, cum esset summA senectute, aureolum hunc dialogum con-
texuit. Certe leges nostra, ut in illo libro videbis, persapieutér
sunt composite, ut ait Pindarus,

Nopos 6 navrwv Bacireus
Ovatwv re xa abavarwv,
Outros de dy ayer Braws
To dxKaorov, imeprata

Xeipe.
Et reliqua que citat in Gorgia Plato.

PREFACE. Xl

during his banishment, and when he was in the
service of a Lancastrian King, he asserted them
again in his work upon Political Monarchy, after
he was restored to his Country, and his allegiance
was plighted to a Prince of the House of York:
and it will be seen in the course of the ensuing
pages, that the spirit of the ancient government of
England, as pourtrayed in this treatise, derives
ample confirmation both from domestic authorities,
and from foreign testimony. It may not appear
a useless or unimportant task to have labored for
the preservation of this early record of those simple
and intelligible truths, which ought to form the
basis of every rational government; and the im-
portance of ‘which is manifested by the fatal con-
sequences arising from the neglect of them that
are legible in our national history.

The remarks of Fortescue upon the legal in-
stitutions which are the subject of his panegyric,
may be productive of other beneficial effects, if they
satisfy the reader, that much of the ancient part of
our law requires a serious revisal and amendment:
It is impossible to peruse the Chancellor’s. observa-
tions in the course of the present treatise, without
perceiving the extraordinary change which time
has occasioned in the circumstances, the manners
and the opinions of the English People. This
obvious reflection may tend to confirm an im-
pression, that the intricacy and want of rationality,

xil PREFACE.

which are justly imputed to a considerable portion
of the Law of England, arise from an adherence
to antiquated forms and maxims, adapted to a state
of .society totally different from our own. The
‘institutions of the past generation have been
moulded to supply the wants of the succeeding
one, until the Law of the Country has become
disfigured by a variety of fictions and subterfuges,
scarcely intelligible even to lawyers, and_ highly
oppressive to the community, by their prolixity
and liability to error. It may be advisable in. the
present. day to retrace the interval of some cen-
turies, and to survey the provisions of our municipal
law, with the light afforded by an ancient encomiast.
It may be expedient to sift and examine the reasons
which our forefathers assigned in support of what
they have established. The mind will thus be en-
abled, by a more close observation, to distinguish
between those parts of our system of jurisprudence,
whose estimation has survived the period during
which they were useful and appropriate, and such
as retain an essential connection with the tranquillity,
and freedom of the Country.

Temp.Le, Feb. 1, 1825.

The Syndics of the University Press, always conspicuous
for their anxiety to promote the cultivation of every branch
of human knowledge, have defrayed out of the funds. at their,
disposal the whole expence of publishing this Work.

CONTENTS.
POON EARL OES. 8S. BOTS RYN, ine ole bs FG
Cuap. I. The Chancellor exhorts the Prince to the Study of

kn BS cg ars ei eal a ane aly
Tee.” The Prince ¢ Answer: is Seniesa eee sve e 0
Cuap. ITI. The Chancellor enforceth his Exhortation...... ..
Cuap. IV. He proves that a Prince by the Laws may be made
TONS AL See. TRS), LY IE Pat eee cee
~Cuap. V. Ignorance of the Laws causes a Contempt thereof
Cuap. VI. A Repetition of his Exhortation.............-..-

Cuap. VII. The Prince yields his Assent, but proposes his
SE ER aint ey Berle yaaa rib aA pL RRRS Ba rk AY

Cuap. VIII. Such a Knonledge of the Law as is necessary for
a Prince is soon to be acquired..........0 00. e ee cee ees

Cuap. IX. A King, whose Government is political, cannot
EMEONMIOD 5's. ours spis'ace eee s ues oc ets se oth nednp

Cuap. X. The Prince proposes a Question... ....2. 0.1.4.5

Cuar. XI. The Chancellor for Answer refers the Prince: to
his Treatise concerning the Laws of Nature, where the

aforesaid Question is handled at large....-..+--+..+++++
Cuar. XII. How Kingdoms ruled by regal Government first
EY, «<0. wetairde, cer teow eset neste Nate de mean ‘

Cuar. XIV. The Prince abridges what the Chancellor had
been discoursing of in the two foregoing Chapters.........

19
20
26

33.

34

XIV CONTENTS.
; Page

Cuap. XV. All Laws are the Law of Nature, Customs or
pec adebes sft ee el tein aes eee Paha Oa See 41

Cuap. XVI. The Law of Nature in all Countries is the same 48

Cuap. XVII. The Customs of England are of great Antiquity,
received and approved of by five several Nations successively 51

Cuap. XVIII. How Statutes are made in England......-. 55
Cuap. XIX. The Difference between the Civil Laws and the

Laws-of England. .n00 52 ssc eee ea 62
Cuar. XX. The Jirst Case wherein the Civil Laws and the.

Laws of England differ... ........0%..00% 55 Oe ee 68
Cuap. XXI. The Inconveniencies of that Law which tries

Causes by Witnesses only. ...02.2 040 y sen cep corps ep pie 67

Cuap. XXII. Concerning Torture and putting to.the Rack 70
Cuap. XXIII. The Civil Law defective in doing Justice.... 76
Cuar. XXIV. The Division of Counties. Sheriffs and their.

A ppointment SOT ne ee ee Ee er eR vacBra late see eees 78.
Cuap. XXV. Jurors. How chosen and sworn....-.. Por 85

* Cuar. XXVI. How Jurors are informed by Evidences. The “
‘way of Proceeding i in Civil Causes... ....2.-+- +++ «nde « 89

es ‘

Cuap. XXVIII. The way of Proceeding in Capital Cases:.. 92

Cuar. XXVIII. The Prince owns his Conviction, that the
Laws of England are much more commodious for the Sub-
wa as to the Proceedings in the above instances, than the

CRORE SRI os 2 Sik PP ee ola naan ean eae arin ed eta 100
Cuap. XXIX. The Reasons why Inquests are not made up of
Jurors of Twelve Men in other Countries... 0.0... 0.806. 102
Cuab. XXX. The Prince commends the Laws of England
mith respect to their Proceeding by Juries..........2.++. 109
Cuar. XXXI.. Whether the Proceeding by Jury be repugnant
fo:the Loa OF GOD OF BOB sie sn easg. 2 co cusnu ween one eat 111
Cuap. XXXII. The Chancellor's Answer......... Su aewe -118

Cuap. XXXIII. The Prince asks the Reason why some a
our Kings have taken disgust at the Laws of England... 123

Cuap. XXXIV. The Chancellor's Answer......... 00... 125

CONTENTS. X¥

. Page
Cuap. XXXV. The Inconveniencies which happen in France
by means of the Absolute Regal Government... .....++-. 129

Cuar. XXXVI. The Comparative Advantages in England,
where the Government is of a mixed Nature, made up of .

) the Regal and Political.............26.2-ceeeeeeeeces 134.
Cuap. XXXVII. Concerning ie Regal Government, and i
Pn Oren. S25 occ oe hore cee ss ecaaees 141

Cuap. XXXVIII. The Prince desires the Chancellor to pro-
ceed to other Cases wherein the Laws of England and the

Rpm Laie: Ciba grees. 2135.08 Ss NS Lae od oa alte 144
Cuap. XXXIX. Concerning the Legitimation of Children

ete Gefone MMT URORY SoS See pees sew c cee ces 145
Cuap. XL: ~The Reasons why Base-born Children are not in ~

England by the subsequent Marriage legitimated......... 148
Cuap. XLI. The Prince’s Approbation of the Reasons given

in the foregoing Chapter... ........c0eccececcccccecves 152
Cuar. XLII. Concerning the Rule of the Civil Law: Partus

semper sequitur Ventrem...... 2.6.0. .sejcec ees cgeens 156

CHar. XLIII. The Prince yields his Assent to the Chancellor,

and disapproves of the said Rule... ..........2. 0020 c eee 161
Cuap. XLIV. Concerning the Tuition of Orphans......... 162
Cuarp. XLV. Concerning the Education of the young Nobi-

PERV ONE EREET LOEMOTIEY 6 oe 5 00.0 a oo 05 « oeicgwine iaginsa's 167

Cuap. XLVI. Concerning open Theft, and private Thefi... 172

Cuap. XLVII. The Prince passes on to an Enquiry why the

of England are not taught in our Universities, and

why there are not Degrees conferred on the Common Law-
yers, as is usual in the other Professions.......-.....+. 1 255

Cuap. XLVIII. The Chancellor's Answer........ pn 177

Cuar. XLIX. The Disposition of the General Study of the
Laws of England. Of the Inns of Chancery, and the Inns
of Court, and.that they exceed in Number any of the Foreign
URINE i 5 «.« o's Sages aon tied dae. eie niu auban aaron So 182

Cuar. L. Of the State, Degree and Creation of a Serjeant
at Lan. .. ben este neee tee ene tee seneeesnssenceeies . 189

Xvi CONTENTS.

Page
Cuap. LI. Of the Judges of the Courts in Westminster-Hall,
the Manner of their Creation, Habit and Employment... 194

Cuap. LIT. The Prince starts an Objection with Respect to

the? Delays in Law-Proceedings .. .....0. 0c. wecceees 201
Cuap. LIII. The Chancellor’s Answer.......+.+-- eeeeas - 202
Cause. LlV:. Conclusion. & 3 oe202 dass s eo nate en biehks 206

Oniginal Latent: Tett..< sive vee ss 053600 etie'e ox a aciae geese

Apprenpix. Protest of Lord Nottingham respecting the Va-
cancy of the TRONC. 6. c0cces' se en ses +s's <> naeeeeeae 269

Extracts from Fortescue on Monarchy... ... 00+ .0+s0++ee0e 271

ical

INTRODUCTION.
———

Dourine that impious and unnatural Civil War
beween the Houses of York and Lancaster, which
not long since raged in England, and by means
whereof their Sovereign King Henry VI. with his
consort Queen Margaret, who was daughter of the
King of Jerusalem and Sicily, and their only son
Edward Prince of Wales, were obliged to quit the
kingdom: and at last, the King, being taken prisoner
by his subjects, suffered a very long and terrible im-
prisonment. But the Queen, with her son, being
thus banished, made her abode in the dutchy of
Berry, which at that time belonged to her father,
the King of Jerusalem.

The Prince, as he grew up to man’s estate, applied
himself wholly to martial exercises; and being often
mounted on fiery and wild horses, which he did not
fear to urge on with the spur, made it his diversion,
sometimes with his lance, sometimes with his sword,
or other weapons, to attack and assault the young
gentlemen his attendants, according to the rules of
military discipline : which a certain grave old knight,
his father’s Chancellor, at that time in banishment with
him, perceiving, thus accosts the Prince :

DE LAUDIBUS

LEGUM ANGLIE.

CHAP. I.

[ ao right glad, most serene Prince, at that worthy
genius of your’s, whilst I observe with how great
an inclination you employ yourself in such manly
and martial exercises; which become you, not so
much as you are a soldier, as, that one time or other,
you will be our king, For it is the duty of a king
to fight the battles of his people, and to judge them
in righteousness, (1 Kings viii. 20.) Wherefore, as
you divert and employ yourself so much. in feats of
arms, so I could wish to see you zealously affected

towards the study of the laws*; because, as wars are
decided by the sword, so the determination of justice
is. effected by the laws: which the emperor Jus-
tinian wisely considering, in the very beginning of
the Introduction to his Institutes, says, It is not
only. incumbent upon. the Imperial majesty to be
graced with arms, but also to be fenced about.with
the laws: that he may know how to govern aright,
both in times of peace and of war’.”’ .As an induce-

* There is a curious tract written by Sir Robert Cotton entitled,
«« An answer to such motives as were offered by certain military
men to Prince Henry, inciting him to affect arms more than
peace.”

» Our early writers upon law had a singular whim for imi-
tating this passage in the beginning of their treatises. See the
commencement of Glanville, Bracton, Fleta: the ancient treatise
on the Scotch law called “ Regiam Majestatem,” derives its name
from this circumstance.

3
ment to set yourself in good earnest about the study
of the laws, the greatest lawgiver of his time, Moses,
formerly chief of the congregation of the people of
Israel, invites you more effectually than Justinan,
when, by divine inspiration, he commands the kings
of Israel, to read the laws all the days of their life,
saying thus: “It shall be when he sitteth upon the
throne of his kingdom, that he shall write him a copy
of this law in a book, out of that which is before the
priests, the Levites ; and it shall be with him, and
he shall read therein all the days of his life, that he
may learn to fear the Lord his Gop, to keep all the
words of this law, and these statutes, to do them,”
(Deut. xvii. 18, 19.) Helynandus, upon the place,
says, “A prince therefore ought not, neither is he
permitted, under the pretence of his duty as a soldier,
to be ignorant of the laws.—A little after he is com-
manded to take a copy of the law from the priests
and Levites, that is, from catholic and learned men.”
Thus he. Deuteronomy is the book of laws whereby
the kings of Israel were obliged to govern the people
committed to their charge: Moses commands their
kings to read this. book, that they may learn to fear
the Lord their Gop, and keep his statutes which are
written in the law. Behold, to fear God is the effect
of the law, which a man cannot attain to, unless he
first know the will of Gop as it is written in the law.
For, the principal, the chief point of obedience, is to
know the will of that Master whom we are to serve
and obey: and yet Moses here in this edict of his,
mentions the effect of the Law first, wiz. The fear
of Gop, and then exhorts to thé keeping the com-
mands of Gop, which are the cause of that fear; for
the effect is always prior to the cause in the intention
of the person who exhorts. But what kind of fear is
that which the laws propose to the keepers thereof?
Sure, it cannot be that fear, of which it.is written
(1 John iv.'18.) that perfect love casteth out fear.
Yet that fear, though it seems a servile fear, often
A2

4

stirs up kings to read the laws. But this is not the
effect of the law: the fear which Moses here in-
tends, and which the laws produce, is that described
by the prophet, “The fear of the Lord is clean,
enduring for ever,” (Psalm xix. 9.) This fear is
filial and quite excludes that servile dread and horror,
which that hath which is cast out by love. This pro-
ceeds from the laws, which teach to do the will of
Gop, in the doing whereof we shall escape all pun-
ishment. ‘The glory of the Lorp (say the Scrip-
tures) is upon them that fear him, whom also’ he
glorifieth :’ in a word, this fear is the same which
Job speaks of, when, after he had turned his thoughts
many ways in search after wisdom, he gives us this,
as the result of his enquiry; “ Behold the fear of the
Lorp, that is wisdom, and to depart from evil is un-
derstanding,” (Job xxviii. 28.) to depart from evil,
the laws teach and caution; whereby they also pro-
duce that fear of Gop, which is the true wisdom*.

* The first few chapters of this treatise are replete with ex-
ploded opinions of philosophy, antiquated definitions of law,
and strained applications of Scripture. , Our ancient lawyers
suffered their opinions and doctrines to receive a false and
improper tincture from the favorite studies of their age; which
in proportion as they were few in number, had a greater ten-
dency to exercise an undue operation on the judgment. Learn-
ing, before it became generally diffused, imparted a mystical
importance to its possessors, and a display of it would con-
sequently be gratifying to them: neither was it to be expected,
that one age could rescue from destruction, and collect together
the stores of ancient wisdom ‘sacred and prophane, -and that it
should also reduce them to their proper level in the scale of
human knowledge, and to their proper influence on the human
understanding. The clerical and judicial character were in
early times commonly united, (Spelman’s Gloss. voc. Justiciarius.
Dugdale’s Origines, p. 21, 22.) and theological learning was a
favorite pursuit of the most eminent legal characters of this
country. Sir E. Coke’s poetical advise to students respecting
the study of the Scriptures is well known. Sir Thomas More
gave lectures, when a young man, upon St. Augustine’ “ de
civitate Dei” in St. Lawrence’ church: Clarendon wrote re-
flections and contemplations upon the Psalms of David; and

; Burnet

~

o

Burnet. observes in his Life of Hale, that a person who should
read the compositions upon the subject of divinity, which that
Judge wrote, would imagine that the study of theology had
occupied most of his time and thoughts. Fortescue informs us,
in a subsequent part of. this treatise, how much the reading of
the Scriptures was blended with that of Law, in the Inns of Court:
it is not therefore surprizing if instances are found in the early
law books and reports, in which a zeal for theological learning
has betrayed the cultivators of it into occasional deviations
from sound judgment, and violations of correct taste. Examples
of this nature occur in the treatise called the Mirror, in which
the Saxons are called throughout the people of God, and a
comparison is made between their history and that of the Jews.
In the resemblance which is traced in Plowden between a fine in
the common pleas and the patriarch Noah. In a multitude of
illustrations from Scripture adopted by Sir E. Coke in his
writings, especially in the third Institute, not the least singular, of
which are the reasons he assigns for the several parts of the
judgment in high treason, (3 Inst. 229, Hobbes’s works 638.
Plowden 354. Popham 43.) Not less remarkable is the strong
tincture which the minds of our ancient lawyers imbibed from,
the Aristotelian philosophy: Sir John Dodderidge who died a.
Justice of the King’s Bench, a. p. 1628, in a treatise called “ The
English Lawyer” expounds the law of England according to the
doctrines of the schoolmen, treating each subject with reference
to its material, formal, efficient and final cause: A commission
of sewers is viewed in the same fourfold light by Sir E. Coke in
his reports, and he considers the creation of a corporation as
taking place conformably to Aristotle’s notions respecting the
origin of bodies in nature: The great deference paid by
lawyers to the authority of that philosopher is very apparent
from Plowden’s observations, at the conclusion of his report of
the case of Eyston and Studd; and the impressions which the
jurisprudence of the country has received from this circumstance
are still very discernible, (Keighley’s Case, 10 Rep. Case of Sul- .
ton’s Hospital, 10 Rep. and see Noy’s Maxims under the Heads
Logic and Philosophy.) It is also observable, that the writings
of the civilians had a material influence in forming the opiniens
of the legal profession in this country. The law of England in
its infancy, stood greatly in need of being improved, and
enriched, from the ample treasures to be found in the code of
a highly civilized and enlightened people. We learn from Selden,
that till the time of Edward the third, the doctrines of the civil
law produced a sensible effect upon the judicial opinions, de-
livered in our courts of justice, (Selden Diss. ad Fletam.) The
quantity of materials of which Bracton has availed himself from
the stores of the imperial jurisprudence, has, in the opinion of
some persons, diminished his credit for fidelity, as a writer upon

English

6

English law, (Plowden’s Comm: 357, and marginal references, ibid.
See the question examined in Reeve’s History of the Law. Henry III.)
Our ancestors were quicksighted in discerning the inexpediency
of the imperial constitutions, »whenever they militated against
the rights of'a free people; yet in other respects the step was
not an immediate one, from looking up to authorities which justly
merited their reverence, and which were their‘only guides m the
complicated) science of jurisprudence, to the scrutiny of them: by.
the light of an unprejudiced reason. | risTI8

» The reader will perhaps be of opinion, that the few first chap-
ters of this work, although they contain but a small portion of
legal or constitutional information, may nevertheless be read
with profit, as exhibiting an interesting example of the cast of
thought which characterizes the ancient lawyers of this country,
and the nature of the studies which principally engaged their
attention.

CHAP. IT.

——_

_ Wuen the Prince heard this, looking very in-
tently at the old knight, he replied, I know, good
Chancellor. that the book of Deuteronomy is a part
of the Holy Scriptures, that the laws and ceremonies
contained therein are of divine institution and pro-
mulgated by. Moses; upon which account the reading
of them is matter for a pious and devout contempla-
tion: but the Law, to the study and understanding
whereof you now invite me, is merely human, deri-
ved from. human authority, and respects this world:
wherefore, though Moses obliged the kings of Israel
to the reading of the Deuteronomical law, it does not
thence reasonably follow, that by the same rule he
invites all other kings to do the like as to the laws
of their respective dominions: the reason of the
study of the one, and of the other, is not strictly
the same.

CHAP. III.

—>—_

Chancellor. I opserve, most excellent Prince,
from your reply, with what care and attention you
weigh the nature of my advice, which encourages _
me very much, not only to explain more clearly,
but to enter somewhat deeper into the matters I
have begun and proposed to you; be pleased to
know then, that not only the Deuteronomical, but
also all human laws are sacred; the definition of
a law being thus, “It is an holy sanction, com-
manding whatever is honest, and forbidding the
contrary*.” And that must needs be holy, which

@ The definition in the text is taken from the civil law, and
is cited by Coke from Bracton. Blackstone has made it the
subject of a copious commentary. It has been objected to by
Hobbes, on the ground, that it supposes a statute, enacted by
the soverign power of a nation, may be unjust: this objection
savours of Hobbes’s peculiar philosophical notions, but perhaps
it may be urged against the definition, that a law would not
cease to be one, on account of its violating the rules of moral
justice. Blackstone’s opinions in that part of his work, in which

e treats of the nature of law in general, are animadverted on
with great ability by Mr. Bentham in his “ Fragment on Govern-
ment.” Hobbes’s own definition of a law, is the following: “ The
command of him or them, that have sovereign power, given to
those that be his or their subjects, publickly and plainly de-
claring what every one of them may do, and what they must
forbear to do.” (Dialogue between a Lawyer and a Philosopher.)
The same writer points out a distinction between the terms jus and
lex, which Coke uses promiscuously, but of which the different
import is explained by Grotius, (De jure Belli ac Pacis, lib.i.ch. 1.)
Other definitions of a law have acquired considerable celebrity,
being those which are given by Demosthenes, Cicero, Mon-
tesquieu and Hooker. The subject has suggested some very
ingenious philological speculations. (Diversions of Purley, —
Vol. II. p. 7 and 8, on the words right, just, law.)

g

is so in its definition. The law or right is also
defined “to be that, which is the art of what is good
and equal;” or, the law considered as a science or
profession, may aptly be defined in the same manner.
Whence we, who are the ministerial officers, who
sit and preside in the Courts of Justice, are therefore
not improperly called, Sacerdotes, (Priests”). The
import of the latin word (Sacerdos) being one who
gives or teaches holy things; and such are all laws
which are solemnly enacted and promulgated, though
made by men: seeing the Apostle says, (Rom. xiii. 1.)
that all power is from Gop. Laws which are made
by men, (who for this very end and purpose receive
their power from Gop) may also be affirmed to be
made by Gop, as saith the author of a book, going
under the name of Auctor Causarum, whatsoever
the second cause doth, that doth the first cause, but
in @ more excellent manner. Wherefore king Je-
hoshaphat.says to his judges, (2 Chron. xix. 6.)
“Take heed what you do, for ye judge not for
man, but for the Lord, who is with you in the
judgment:” whereby you are instructed, that to
study the laws, though of human institution, is in
effect to study the laws of Gop; which therefore
cannot but afford a pious and devout entertainment.
But neither was it out of devotion only (as you
rightly judge) that Moses commanded the kings
of Israel to read the book of Deuteronomy rather
than any other part of the Pentateuch, since all of
them abound in matter for a devout and holy con-
templation ; to meditate on which is the part of every
good man: the true reason of this command is, that
in the book of Deuteronomy, the laws, whereby the

* Gravina adduces this appellation, which the Roman lawyers
gave themselves, among other instances, to shew that the imperial
law bears many traces of being supplied from the tenets and
notions of the ancient schools of philosophy: The Stoics called
themselves the priests of virtue. (Gravina de Jurisconsultoruns

Philosophia.)

10

kings of Israel were obliged to govern their subjects,
are more expressly, more explicitly ,particularized
than in any other of the books of the Old Testament,
as the circumstances of the command do plainly
evince. Wherefore, my prince, the same cause
does no less exhort you than the kings of Israel,
that you ought to be a studious enquirer into those
laws, whereby you may be hereafter qualified to
govern your subjects. For, what is said, to. the
kings of Jsrael must, be figuratively. intended to
be spoken to every king who bears rule over,a
people, who know and worship the. true .,Gop,
Upon the whole, could any thing be more fitly or
more usefully offered to your, consideration, than
this command enjoined to the kings of. Israel, to
read and study. their law? Since, not only the
example, but the typical authority thereof instructs
and obliges you to behave conformably to the laws
of that kingdom, to the crown whereof, with the
permission of Divine Providence, you are in due
course of time apparently to inherit.

li

CHAT. IV.

Tue Laws, my dear Prince, do not only, with the
Prophet, saying, ‘Come, ye children, hearken unto
me, I will teach you the fear of the Lord,’
(Ps. Xxxiv. 11.) call on you to fear Gop, whereby
you may become wise; but the same laws also
invite you to be exercised in them, that you may
attain to felicity and happiness (as far as they are
attainable in this life.) For all the philosophers,
who have argued so differently about happiness,
have agreed in this, that happiness is the end of
all human desires, for which reason they call it
the summum bonum, the greatest or chief good :
the Peripatetics placed it in virtue; the Stovcs in
what is honest; and, the Epicureans i in pleasure :
‘but, inasmuch as the Gites defined that to be honest
which is done well and laudably, according to the
rules of virtue; and the Epicureans asserted that
nothing is or can be pleasant without virtue; all
those sects, according to Leonardus Aretinus, in
his Introduction to Moral Philosophy, have con-
curred in this, that it is virtue alone which procures
and effects happiness, wherefore Aristotle, (Lib. 7.
Poltt.) defining happiness, says, “That it is the
perfect exercise of all the virtues. This being
granted, I desire you to consider what will follow
from these premisses. Human laws are no other
than rules whereby the perfect notion of justice
can be determined: but that justice, which those
Jaws discover, is not of the commutative, or dis-
tributive kind, or any one particular distinct virtue,
but it is virtue absolute and perfect, and distinguished
by the name of Legal Justice, which the same

12

L. Aretinus affirms to be therefore perfect, because
it utterly rejects and discountenances whatever is
vicious, and teaches an universal virtue, for which
it is deservedly called, stmply, by the, name of virtue
in the general; concerning which thus Homer and
Aristotle, It is the most excellent of all the virtues,
and that nor morning nor evening star is so bright
or lovely as this. This justice is the subject of
the royal care*, without which a king cannot. act
in his judicial capacity as he ought to do, and
without which he cannot justly engage in any war:
but this being once attained and strictly adhered
to, the whole regal office will, in all respects, be
adequately and completely discharged; so that (to
sum up what we have said) happiness consists: in
the perfect exercise of all the virtues; and since
that justice which is taught and acquired by the
law, Is universal virtue, it follows, that he who has
attained this justice, is made happy by the laws,
consequently has attained the suwmmum bonum, or
beatitude, since that and happiness in this fleeting
life mean the same thing. Not that the law itself
can do this exclusive of divine grace: nor will you
be able to learn either what is law or virtue without
it, not so much as in the inclination to it. For,
as Parisiensis says, ‘ The internal appetitive virtue
of man is so vitiated by original sin, that .vicious
practices relish pleasantly, and the works of virtue
seem harsh and difficult.’ Wherefore, that some
give themselves up to admire and follow virtue, is
owing to the grace of Gop, and not their own
natural strength or uprightness of disposition. May
I not now ask the question, Whether the laws,
which through the divine concurrence work such
good effects, as I have laid before you, are not te

* That justice is an indispensible qualification in a Sovereign,
was impressively inculcated by Burnet, ona very suitable occasion,
in his sermon at the coronation of William and Mary, from the
text 2 Sam. ch. xxiii. ver. 3 and 4.

13

be studied with the utmost application? since he,
who hath a just notion of them, is in the way to
arrive at that felicity, which, according to the
philosophers, is the end and completion of all human
desires, and the chief good of this life. ‘Though
what I have hitherto offered is of general considera-
tion only, and therefore may not seem to concern
you, as you are heir apparent to a Crown; yet,
the words of the Prophet lay an obligation on you,
even in that capacity, to apply yourself to the study
of the law, when he says, “ Be instructed, ye judges
of the earth,’ (Ps. ii. 10.) The Prophet does not
here persuade to the learning of any mechanical
art or trade, nor yet of any science in theory, how
proper or beneficial soever to mankind; for he does
not say in general, Be instructed, ye inhabitants
of the earth, but addresses himself in a particular
manner to the kings, or rulers of this world; and
exhorts them to the study of the law, according to
which they ought to administer justice and judgment
to their people: “Be instructed, ye judges of the
earth.”’—It follows, “lest at any time the Lorp be
angry, and ye perish from the right way.” Neither,
great Sir! do the Scriptures only oblige you to be
instructed in the laws, by which justice is to be
learned and attained, but in another place gives it
you in charge to love justice herself, saying, ‘“‘ Love
righteousness, ye that be judges of the earth.”
(Wisd. Solomon i. 1.)

14

CHAP. V.

i

Burt, Sir! how will you love righteousness, or
justice, unless you first acquire a competent know-
ledge of the laws, by which justice is to be learned
and known : for, as the philosopher says, “‘ Nothing
is admired or loved unless it be known,’’ which made
the orator Fabius say, “That it would be well with
the arts and sciences, if artists only were to make a
judgment of them.” What is not known, is so far
from being loved, that it is usually despised, as saith
a certain poet,

The Rustic what he knows not always slights.

Nor is this the way of the clown only, but of men
of learning and skill in the liberal arts and sciences.
Suppose (for instance) a natural philosopher, who
had never studied either. the Mathematics, or Meta-
physics, should be told by a Metaphysician that his
science considers things abstracted trom all matter
and motion, both as to their essence or reality, and
as to-our conception -of them: tne Mathematician
asserts, that his science considers things in reality
conjoined to matter and motion, but separated from
them in our conception: it is certain that our Natu-
ralist, who was never acquainted with any thing
separated from matter and motion, either in reality
or conception, would not forbear laughing at both
of them, and would be apt to despise their respective
sciences, though of a sublimer nature than his own;
and that for nd other reason, but because he is
perfectly unacquainted with them, So (my Prince)
would you in like manner be surprised at a lawyer

15

who should assert, that one brother shall not succeed
in the father’s inheritance to another brother, who
is not born of the same mother, but that the inhe-
ritance shall rather descend to the sister of the whole
blood, or it shall come to the lord of the fee by way
of escheat*: yow would be surprised (I say) at this,
as not knowing the reason of the law in this particular
ease.. Whereas the-seeming difficulty of this case
gives no perplexity at all to such as are skilled in the
common law of ‘England: which confirms the vulgar
saying, “The arts and sciences have no enemy but
the: unlearned.” © > ')> >

+ But far'be it, my Prince, that) you should prove
averse, or an enemy tothe laws of that country to
which: you will in time inherit by right of succession,
when:the above cited text of Scripture instructs you
tolove righteousness. Wherefore, most noble Prince,
permit meiagain and again to importune and beseech
you to inform yourself thoroughly in the laws of your
father’s kingdom, not only that you may avoid the
inconveniencies I have mentioned, but because the
mind of man, which has a natural propensity to what
ise good,and «can desire nothing but as it has the
appearance’ of good, as soon as by instruction it
comes to a perfect knowledge of that good, it rejoices,
takes pleasure therein, and as it improves by reflec-
tions, the pleasure grows more and more; from
whence you may infer, that when you come to be
structed in those Jaws, to which you are at present
a stranger, you will most certainly affect and love
them, because they are excellent in their nature and ©
reason; and the more you know of them, the more
will you be entertained and pleased. For what is

* The rule of descent mentioned in the text, “frater fratri
uterino non succedet in hereditate paterna,” is remarkable for
being more liberal, than the rule for excluding the half blood,
in the present day; and the ‘passage in the text, is noticed
upon that account by Blackstone in his commentaries: he says,
that it agrees with what is found in the costumier of Normandy.

16

once loved does by use transform the person into its
very nature, according to the philosopher, “Use
becomes a second nature.” So the cion of a pear-
tree grafted on an apple-stock, after it has taken,
draws the apple so much into its nature, that both
become a pear-tree, and are called’so from the fruit
which they produce. So, virtue put in practice grows
into a habit, and imparts its very name to those who
practice it: as we say of one who is indued with
modesty, continence or wisdom, that he is modest,
continent, wise. So you (my Prince) when you shall
have practised justice with delight and pleasure, and
have, as it were, transcribed the law, with the rule
of justice, into your very habit and disposition, will
deservedly obtain the character of a just prince*.
And, as such, be saluted with those agreeable words
of the Psalmist, ‘Thou lovest righteousness, and
hatest wickedness, therefore Gop, thy Gop, shall
anoint thee with the oil of gladness above thy fellows,”
(Pa. xly. 73)" °° 3

* Sir E. Coke, whose mind was deeply impregnated with
the learning of the schools, says, that the King’s justices were
anciently called Justicie, for that they ought not only to be justi
in the concrete, but ipsa justitia in the abstract. (2 Inst. 26.)

CHAP. VI.

Anp now, most gracious Prince, are not these
arguments, which I have offered, abundantly sufficient
to induce you to the study of the law? Since thereby
you will acquire a habit of justice, be honoured with
the name and character of a just prince; not to say,
that you will thereby also avoid the imputation and
disgrace which attends ignorance; and moreover you
will thereby attain to (that, which all men covet after)
happiness, as far as it is attainable in this life; and
through that fear of Gop which is the truest wisdom,
and that charity or love of Gop which, in the peace
and satisfaction of it, passes all understanding, being,
as it were, united to the best and greatest Being, the
fountain of all happiness and perfection, you will
become (to use the Apostle’s expression) one spirit
with him.

But, because these things (as I said) cannot be
wrought in you merely by the law, without the
special assistance of divine grace, it is necessary that
you implore for that above all things; as also that
you search diligently into the knowledge of the
divine law, as contained in the Holy Scriptures. For
Holy Writ saith, “Vain are all men by nature who
are ignorant of God,’ (Wisd. Solomon xiii. 1.) I
advise you, therefore, my Prince, that whilst you are
young, and your soul is, as it were a virgin-table,
a blank space, you write it full with such things
as I have above hinted at, lest afterwards it be

B

18

more pleasantly, though delusively filled with charac-
ters of little or no importance, according to the saying
of a certain author:

The vessel its first tincture long retains.

What mechanic is there so inattentive to the
advantage of his child, as not to instruct him in his
trade while he is young, whereby he may afterwards
gain a comfortable subsistence. So the carpenter
teaches his son to handle the axe; the smith brings
up his at the anvil; a person designed for the sacred
office of the ministry is bred, in a liberal way, at
school: so it becomes a king to have his son (who
is to succeed him) instructed in the laws of his
country whilst he is yet young*. Which rule, if
kings would but observe, the world would be governed
with a greater equality of justice, than now it is.
And, if you please to follow the advice I give, you
will show an example of no small consequence to
other princes, persons of the same high rank and
distinction with yourself.

* King Charles the first, on the occasion of his trial, speaks of
his being as conversant with the law of this country, as any
private gentleman in his dominions. The necessity of the study
of the municipal law to a Sovereign, is inculcated in king James's
BaotAxov dwpov. lib. ii. The subject is more fully discussed in Here-
baschius’s work, de Erudiendis instruendisque Principum liberis.
There are some interesting particulars preserved in- the Paston
Letters, respecting the manner in which the father of the Prince,
whom Fortescue is addressing, was brought up. (Vol. III. Articles
declaratory of how the Earl of Warwick took charge of Henry the
sixth, when a minor.)

19

CHAP. VII.

Tue Chancellor having ended, the Prince began
as follows: You have overcome me, good Chancellor,
with your agreeable discourse; and have kindled
within my breast a more than ordinary thirst after
the knowledge of the law. There are two things,
nevertheless, which make me fluctuate, so that, like
a ship in a storm, I know not which way to direct
my course. One is, when I recollect how many
years students of the law are taken up, before they
arrive at any competent knowledge of it: which
discourages me, lest I employ all my younger years
in like manner: another thing is, whether to apply
myself to the study of the laws of England, or of the
Cwil Laws, which are so famous throughout the
universe: for a kingdom ought to be governed by
the best of laws, according to the philosopher, nature
always covets what is best. Wherefore I would
willingly attend what you advise in this matter. To
whom the Chancellor: Sir! there is nosuch mystery
in these things, as to require abundance of delibera-
tion; and therefore I shall give you my thoughts
upon the matter without keeping you in suspense.

B2,

CHAP. VIII.

Tue philosopher, in the first of his Physics, says,
«Tis supposed that we then know every thing,
when we apprehend the causes and principles thereof
as high up as the first elements:” upon which the
Commentator observes, that by principles, Aristotle
meant the efficient causes, that by causes, the final
causes are intended, and by elements the matter and
form: now in the laws there are not, properly speak-
ing, matter and form, these being what go to the
composition of natural things; but something anala-
gous to it however, vz. certain elements, out of which
they arise, as Customs, Statutes, or Acts of Parlia-
ment and the Law of Nature: whereof the laws of
particular kingdoms consist, as natural things do of
matter and form; what we read or write consists
of letters which are called the elements of Reading
and Writing. As for the Principia, which the
Commentator calls the efficient causes, these are no
other than certain Universalia, which the learned
in the law, as well as mathematicians, call Maxims *,

* Lord Bacon, in the preface to his Maxims, has detailed the
advantages, which he supposes may result from collecting the
rules and grounds dispersed throughout the body of the laws.
But the benefit which science has received from the use of
maxims, is of a questionable nature, and the adoption of them
is attended with danger wherever the ideas are confused. (Locke
on the Human Understanding, Book IV. ch. 7.) Perhaps there
is a period in the progress of every system of laws, previous to
which the formation of maxims will be productive of bad effects,
as leading to the establishment of principles which it is not
permitted to controvert, but which more enlightened views of law
and jurisprudence, would repudiate, (See further concerning the
maxims of the English law. Sir I. Dodderadge’s English Lawyer,
and Doctor, and Student, Dial. 1, ch: 8 and 9.)

21

in rhetoric they are called Paradozes, the civilians call
them Rules of Law. 'They are not discoverable by
stress of arguments or logical demonstrations, but
as is said (secundo posterworum) by induction, by
the assistance of the senses and the memory: where-
fore, in the first of his Physics, Aristotle has it, that
“principles are not made up of other things, nor
one of another. But other things proceed from
them ;”’ wherefore, according to the same author,
the first of his topics, it is, that “every principle
carries its own evidence with it, so that there is
no disputing with those who deny first principles :”
because, as the same p/zlosopher writes in the first
of his Ethics, ‘ Principles do not admit of proof
by reason and argument.’’ Whosoever therefore
desires to get a competent understanding in any
faculty of science, must by all means be well in-
structed in the principles thereof. For, by reasoning
from these principles, which are universally acknow-
ledged and uncontested, we arrive at length at the
final causes of things. So that, whoever is ignorant
of these three, the principles, causes and elements
of any science, must needs be totally ignorant of the
science itself; on the other hand, when these are
known, the science itself is known too, at least in
general and in the main; though not distinctly and —
completely.

So we judge that we know the law of Gop, in
knowing what is faith, hope, charity, the sacraments
and Gop’s commandments: leaving other mysteries
in Divinity to those who preside in the Church.
Wherefore, our blessed Saviour says to his disciples,
*“Unto you it is given to know the mysteries of the
kingdom of Gop, but to others in parables, that
seeing they might not see, and hearing they might
not understand.”” And the Apostle cautions, “ Not
to think of one’s self more highly than we ought
to think,’ (Rom. xii. 5 and 16.) And, in another
place, “not to mind high things, not to be wise

22

in our Own conceits.” So, my Prince, there will
be no occasion for you to search into the arcana
of our laws with such tedious application and study ;
it will be sufficient, as you have made some progress
in grammar, to use the same method and proportion
in the study of the laws. As to grammatical learn-
ing, which consists of Etymology, Orthography,
Prosodia and Syntax, as so many springs or foun-
tains running together to complete it; you are not
so perfect a master, it is true, as to be acquainted
with all the particular rules and exceptions com-
prehended under each of these; but yet that general
knowledge of grammar, which you have acquired,
is sufficient for your purpose, from whence you may
be justly stiled, a grammarian. In like manner
you may be deemed a lawyer in some: competent
degree, when, as a learner, you ‘shall become ac-
quainted. with the principles, causes and elements
of the law. It will not be convenient, by severe
study, or at the expence of the best of your time,
to ‘pry into nice points of law; such like matters
may be left to your judges and counsel, who im
England are called Sergeants at Law, and others
well skilled in it, whom in common speech we call
Apprentices of the law: you will better pronounce
judgment in your courts by others than in person:
it bemg not customary for the kings of Hngland
to sit.in court, or pronounce judgment themselves’ ;
and ‘yet they are ‘called the ‘King’s judgments,
though ‘pronounced and given by others: as Jeho-
shaphat asserted, that “they judged not for man,
but for the Lord, who was with him in ‘the judg-
ment,” (2 chron. xix. 6.) Wherefore, most gracious
Prince, you will soon, with a moderate application,
be sufficiently instructed in the laws of England,
if so be you give your mind to it. Seneca, in an
epistle to Lucillus, says, “There is nothing but

» See note B at the end of this Chapter.

23

what great pains and diligent care will get the
better of.’ I know very well the quickness of your
apprehension and the forwardness of your parts;
and I dare say, that in those studies, though a
knowledge and practice of twenty years is but
barely sufficient to qualify for a judge*, you will
acquire a knowledge sufficient for one of your high
quality, within the compass of one year; and in
the mean while attend to, and inure yourself to
martial exercises, to which your natural inclination
prompts you on so much, and still make it your
diversion, as shall best please you, at your leisure.

© « Lucubrationes viginti annorum.”

Note B.

« Proprio ore Rex nullus Anglie judicium proferre usus est.”
This passage was quoted by Sir E. Coke, at the celebrated
conference between the houses of Parliament, respecting the
liberty of the subject, for the purpose of shewing that the King
can do nothing in his public capacity, without the agency of
some responsible minister. This is a principle of the highest
political importance, and it is maintained by the greatest autho-
rities of the law of England, (2 Inst. St. West.1. where Sir E. Coke
again relies upon the passage in the text. Impeachment of Lord Danby,
for a letter written by the order of the King, 2. Hargr. St. tr. Danby
Memoirs. Harris’s Car. II. Vol. V. p. 238. Answer to the King’s
Declaration, upon dissolving the Parliament, a. pv. 1681. Vol. IV.
Parl, Hist. Appendix. Harleys Vindication of the Rights of the
Commons. Somers’s Tracts, W. 3. Speaker Onslow’s Note respecting
Lord Somers’s Answer to his Impeachment in Burnet’s Own Times,
Vol. IV. 468, 479. St. 12 and 13, W. 3. ch. 2. §. 3.) When any
judicial act is by a statute referred to the King, it is understood as
required to be done in some court of justice, according to the law;
for, in the view which has been taken of this subject by our most
eminent legal writers, the King hascommitted all his judicial autho-
rity to the several courts, and if any one would render himself to the
judgment of the King in such case, where the King has committed
all his judicial power to others, it would be to no effect. (2 Jnst. 186,
** Maundement del Roy,” 3 Inst. 146, “ Volunt le Roy,” 4 Inst.71, and

what

24

what is there.said respecting “ Dominus Rex in camera sud,” 2 Inst. 46,
“Nec super eumibimus.” The Year Book, 2 Rich. I11. fol. 11, and re-
specting the invalidity of an arrest by virtue of a personal warrant from
the Crown, 2 Shower 484.) Saint John observes, that although his
Majesty is said to be the fountain of justice, and although all the
justice within the kingdom flows from that fountain, yet it must
run in certain and known channels, (Argument for Hampden,
1 Hargr, St. tr.) With this Sir Robert Atkyns agrees, saying,
that the light of justice was in the King, but was afterwards
settled in courts, as the light of God in the sun and moon.
(Tract on the Ecclesiastical Commission.) The principle of the
incapacity of the King of England, to exercise any judicial func-
tion, was magnanimously asserted by Sir E. Coke, in the presence
of King James, notwithstanding that infatuated monarch pro-
nounced the doctrine to be treasonable. (‘ Prohibitions del Roy,”
12 Rep. 3 Lodge’s Illustrations, 346.) It is true, that at a period
before the principles of the Constitution were settled upon a solid
basis, instances are to be found, in which the kings of this country
have personally assisted in the administration of justice, (Dial.
de Scacc. lib. i. §. 4. Madox’s Exchequer, ch. 3. Barrington’s Observa-
tions on 17 Edw. IV. Reeves’s History of the Law, Edw. IV.
Henry's History, Vol. V. p. 382. 3 Bl. Comm. 41n. Paston Letters,
Vol. IV. p. 77. Vol. II. p. 275. and concerning the right arrogated by
James, of presiding in the Star Chamber, Brodie’s British Empire,
Vol. I. p. 193.) Examples also of an interference on the part of the
Crown, with the ordinary course of justice, may be adduced from
the records of the Exchequer, which evince the expediency of every
distinct provision, contained in the famous clause of Magna Charta,
“« Nulli negabimus, nulli vendemus, nulli differemus justitiam aut
rectum.” (Madox’s Exch. ch. 12. §. 6.) Instances likewise in
which the Sovereign has tampered with the public dispensers
of justice, are to be met with in different periods of English
history; and an indelible stigma is affixed to the house of Stuart,
for having eclipsed every preceding and subsequent dynasty,
in the shamelessness of the practice, and in the enormities of
which they made it the instrument, (Luders’s Tract on the
Station and Character of the Judges in the 16th and 17th centuries.
Foster’s Dicourses,.199, 200. Bacon’s Letters. Burnet’s Own Times
Vol. I. p. 272.) So far, however, is the English Constitution
abhorrent from any influence, which the Crown might exercise in
the administration of justice, that the Judges are expressly prohib-
ited by their oath, from obeying any injunctions, which may inter-
rupt them in the discharge of their duties, (2 Inst. 56.2 Edw. III.
c. 8. 14 Edw. III. St. 1.¢. 14. 20 Edw. III. ¢. 1 and 2. 11 Rich. II.
c. 10. see also Lord Somers on Grand Juries, p. 111. et. sey.) The
Statutes, which require the Judges to persevere in this independ-
ent line of conduct, may be enforced by means of a particular
writ, entitled “De Procedendo in Judicium.” (lifz. Nat. Brev.

; 153 6,

25

153 b. 240d.) The observation of these laws was impressively
enjoined on all her Judges, by Queen Elizabeth ; and upon two
remarkable occasions in her reign, she admitted the validity
of the reasons they assigned, for refusing to be governed by her
directions, in matters of judicature before them, contrary to their
oaths. (Pref. to 2nd. Rep. Anderson’s Rep. p. 297. et. seq.
Cavendish’s Case, ibid. p. 152. Petyt. Jus Parliamentarium, p. 203,
204. and on the subject of Queen Elizabeth’s Warrants. 15 Vol.
Rymer’s Fad. and 1 Brodie’s British Empire, p. 291.) The
spirited demeanor of Sir E. Coke, in maintaining the in-
violability of his oath, upon this important point, on the
occasion of the case of Commendams, has reflected immortal
honor upon his name: whereas the compulsion arising from
the expression of the Royal will, has never been deemed suf-
ficient to justify or excuse the conduct of the administrators of
justice ; for it would have the effect of extending to them the
prerogative of doing no wrong, (Oldcastle’s Remarks on English
History, Letter 7. Proceedings against Herbert, Attorney General,
tem. Car. I. 3 Brodie’s British Empire, p. 305; and see a Letter of
Gardiner to the Protector Somerset in Petyt. Jus. Parl. p. 200.)
Since the Revolution, the independence of the judicial power of the
State has been maintained with considerable success. The change
which has taken place in the patents of the Judges, has divested
the Crown of its hold upon the fears, whatever influence may be left
to it, upon the hopes of the bench: and although the practice did
not cease at so early a period of requiring the extrajudicial advice
of the Judges, as the Counsellors of the Sovereign, upon matters
which might afterwards be submitted to them, in their judicial
capacity, yet this invidious prerogative has been long unexercised.
The injustice of such an auricular taking of opinions, as Sir E. Coke
denominates it, was properly felt and expressed by Chief Justice
Hussey, in the reign of Henry the VIIth; and in commenting upon
the language of that Judge upon this subject, Sir E. Coke asks,
“‘ How can they be indifferent, who have delivered their opinions
beforehand, without hearing of the party, when a small addition
or subtraction may alter the case; and how does it stand with
their oath?” (3 Inst. 29 and 30. Case of Lord George Sackville’s
Court Martial, a.p. 1760. Appendix to Eden’s Reports. Proceed-
ings at Carlisle in the trials of the Rebels, a. pv. 1715, Vol. III.
Ellis’s Original Letters ; and see respecting the Law and Precedents
upon ths subject, Hargr. Co. Litt. 110 a. 129 n. Fortescue’s Rep.
p- 300. For the ancient instances, see particularly the cases of
Ship Money, and of the Regicides ; also Luder’s on Treasons. In
Hargrave’s Preface to Hale’s Jurisdiction of the Lords, p. 48, ts
detailed a remarkable secret conference between Charles I. and his
Judges, preparatory to passing the Petition of Right.)

CHAP. IX.
—>—_

Tue next thing, my Prince, at which you seem
to hesitate, shall, with the same ease, be removed
and answered, that is, whether you ought to apply
yourself to the study of the Laws of England, or
to that of the Civil Laws, for that the opinion is
with them every where, in preference to all other
human laws: let not this difficulty, Sir! give you
any concern. A King of England cannot, at his
pleasure, make any alterations in the laws of the
land, for the nature of his goverment is not only
regal, but political. Had it been merely regal,
he would have a power to make what innovations
and alterations he pleased, in the laws of the king-
dom, impose tallages* and other hardships upon the
people, whether they would or no, without their
consent, which sort of government the Crvil Laws

point out, when they declare Quod principt placuit
legis habet vigorem: but it is much otherwise with
a king, whose government is political, because he
can neither make any alteration, or change in the
laws of the realm without the consent of the sulject,
nor burthen them, against thew wills, with strange

* « Tallagia.” In Sir E. Coke’s commentary upon the disputed
statute “ de tallagionon concedendo,” it is observed that tallagium
is a general word including all subsidies, taxes, tenths, fifteenths,
impositions, or other burthens or charges.” For the meaning of
tallage, according to a more confined use of the expression, see
Madox’s Exchequer, ch. 17. An enquiry into the history of the
imposition of tallage, properly so called, is calculated to throw
considerable light on the early representation of boroughs, and
on the distinction anciently existing between the taxes levied on.
shires, and those according to which other divisions of the country
were assessed. (Report of the Lords’ Committees respecting the -
Peerage, p. 239, 271. Luder’s Tracts, Vol. II. p. 307. Hallam’s
Middle Ages, Vol. II. p. 239, 240.)

is)

27

empositions, so that a people governed by such laws
as are made by their own consent and approbation
enjoy their properties securely, and without the
hazard of being deprived of them, either by the
king or any other: the same things may be effected
under an absolute prince, provided he do not de-
generate into the tyrant. Of such a prince, dris-
totle, in the third of his Polttics, says, “It is better
for a city to be governed by a good man, than by
good laws.” But because it does not always happen,
that the person presiding over a people, is so quali-
fied, St. Thomas, in the book which he wrote to
the king of Cyprus, (De Regimine Principum,)
wishes, that a kingdom could be so instituted, as
that the king might not be at liberty to tyranize
over his people; which only comes to pass in the
present case; that is, when the sovereign power is
restrained by polttical laws. Rejoice therefore, my
good Prince, that such is the law of that kingdom
to which you are to inherit, because it will afford
both to yourself and subjects, the greatest security
and satisfaction. With such a law, saith the same
St. Thomas, all mankind would have been governed,
if, in the Paradise, they had not transgressed the
command of Gop. With the same was the whole
nation of the Jews governed, under the theocracy,
when Gop was their king, who adopted them for
his peculiar people: till, at length, upon their own
request, having obtained another sort of king, they
soon found reason to repent them of their foolish
and rash choice, and were sufficiently humbled
under a despotic government”: but, when they had

* This circumstance in Jewish history, did not escape the
writers on the side of the Parliament, in the time of the civil war ;
and they have accordingly availed themselves of it with much
ingenuity. (See Milton’s Tenure of Kings and Magistrates ; and
the Defensio pro Populo Anglicano.) The reader will find some
curious observations respecting the theocracy of the Jews, by the
eccentric author of the Oceana, in his Treatise upon the Art of
Lawgiving, Book II.

28

good kings, as some there were, the people pros-
pered and lived.at ease; but when they were other-
wise, their condition was both wretched and without
redress. Of this you may see a particular account
in the Book of the Kings. This subject. being
sufficiently discussed in a small piece I formerly drew
up on purpose for your use, concerning the Law
of Nature, 1 shall forbear at present to enlarge.

_ Tus Chapter is very memorable on account of the repeated

reference which has been made to it, in arguing many great
constitutional questions in Parliament, and in the Courts of
Westminster Hall. In the struggle which was maintained in
the reign of James, against arbitrary impositions at the Ports,
great stress was laid upon the authority of Fortescue, in this
part of his work. The Judges who formed a conspicuous
exception to a profligate bench, that abandoned the liberties
of the nation in the celebrated case of Ship Money, founded
their arguments on the principles of the Constitution which are
here maintained ; and made a proud appeal to the writings of
the Chancellor of Henry the Sixth. Indeed, whoever will
examine the collection of the State Trials and the parliamentar
history, with this view, will be satisfied that the benefit which
the nation has derived from the legal authority of Fortescue,
in settling the prerogative on a basis at once advantageous
to. the subject and secure to the Prince, is not inferior to that
for which it is indebted to the philosophical reasonings of
Locke.

That this fundamental principle in the English Constitution,
of no man being compelled to relinquish his property without
his consent, was a part of the Mos Majorum prevalent in this
country from the earliest times, cannot be proved by a more
unimpeachable authority than Fortescue; in confirmation of
whom, Sir E. Coke repeats in several parts of his works the
following maxim of the common Law, “Le commun ley ad
tielment admeasure les prerogatives le Roy que ilz ne tollerent.
ne prejudiceront le inheritance d’ascun, (2 /nst. 63. 3 Inst. 84.
See also Plowden 230.) The same principle is also oR

29

and energetically promulgated by the ancient Statute Law of
this realm: if the laws of the Conquerer are of too remote
and too doubtful authority to be relied upon in the consideration
of this question, (See Observations on the Magna Charta of Wilham.
Hallam’s Middle Ages, Vol. Il. p.175.) If the Magna Charta of —
King John when viewed in conjunction with the charters of the
succeeding Prince, does not form a basis sufficiently solid and
unobjectionable for the purpose, (See Observations on the Clause
respecting Scutage in the Charter of John, in the Report of the
Lords’ Committees respecting the Peerage.) If the Statute “De
Tallagio non concedendo,” be rejected by antiquarians of the
highest name, (Blackstone on the Charters, Barrington, Reeves.)
Yet the common right of the kingdom in this respect is ex-
pressed in many ancient Acts of Parliament, in a manner
scarcely less positive and distinct than it is enunciated in the
Petition of Rights, and the Bill of Rights. (Preamble to the
Petition of Rights. Barrington’s Observations on the Statute of
Confirmatio Chartarum. 2 Inst. 530, 532. Debate on the Case
of Impositions, 11 Harg. St. tr. Case of Benevolences, ibid.) The
examples of danegelt, hydage, murage and pontage, and the
ancient customs on which are founded the chief arguments that
were urged in support of prerogative taxation during the reign
of the Stuarts, have been satisfactorily explained and answered,
(See the Arguments on the Cases of Ship Money and Impositions
in the State Trials. That the antiqua custuma had their commencement
by Act of Parliament, 2 Inst. 59.) Instances are no doubt to be
met with, in which the Crown has attempted to arrogate to
itself the power of taxing the subject under the disguise of
legal shadows and devices, as by grants to merchants, given
for some equivalent advantage conferred on themselves, by
loans and privy seals, by commissions under the pretence of
State necessity, by dispensations with penal laws, by impo-
sitions in the way of ordinance of Parliament, by monopolies,
by benevolences levied compulsorily, or with an appearance
of free will—all of which crafty stratagems have been repro-
bated and repressed in specific Statutes, enacted on the occasion
of the particular grievance; and to obviate every subtle con-
trivance, through which the Sovereign, by means of any sinister
inducement, might obtain money from the subject without the
consent of Parliament, it seems to be settled by the legislature
that all commissions from the Crown, to solicit and receive gifts,
however voluntarily bestowed, are unconstitutional, (Hakewell’s
Argument in the Case of Impositions, and Hargrave's notes upon
that Case and the Case of Benevolences, in his edition of the State
Trials—for the Law as settled after the Restoration, see Stat. 12
Car. Il. c. 4. §. 6.13 Car. II.¢.4.) It has been properly observed
that the Constitution of this country is to be judged of by its
laws, and not by particular instances which are to be found
of

30

of the infraction of them, “judicandum est legibus non ex-
emplis.” But even the precedents which have usually been
adduced in favor of the existence of the power of arbitrary
taxation in England, have been greatly misrepresented. Mr,
Brodie in a recent publication has exposed many of the pre-
valent errors upon this subject, which are to be found in the
writings of Hume. The greater part of the examples in which
the subjects’ right has been violated, are, when viewed together
with all the concomitant circumstances of the occasion, of a very
doubtful and qualified nature: whilst the authorities on the
other hand which manifest the restraint upon the prerogative,
in this respect, are numerous and conclusive. Kings of England
have abstained from imposing taxes without the consent of
Parliament, at times when every inducement was operating on
their minds to resort to such a course had it been lawful: they
have solicited assistance from the bounty of individuals and
of Parliament, without any salvo of their right: moneys which
the crown has obtained without the common consent, have. been
recovered by suits at law: Kings have acknowledged in Par-
liament the impropriety of their infringing upon this undoubted
privilege of the subject. Even that arbitrary monarch, Henry
the Eighth, withdrew a commission which he had of his own
authority issued to levy a tax upon the kingdom, and laid the
blame upon his Minister Wolsey, of that flagrant encroachment
of the prerogative. Judge Hutton in delivering his judgment
upon the case of Ship Money, relates that Queen Elizabeth, a
sovereign no less jealous of power than her father, sent her
Privy Counsellors to all parts of the kingdom to countermand
a commission which had been issued for levying a tax as soon as
she was convinced of its illegality; the same Judge mentions
that he as well as the others, who were forced to contribute on
that occasion, had the sums which had been exacted refunded
to them. This important constitutional principle was vigilantly
guarded at the period of the Revolution by a particular clause
in the Bill of Rights; and it was a laudable measure of the
Parliament of William, to determine that he was to receive
the revenue of the Crown as a gift from themselves, and not
by way of succession from his predecessor. Tt has been
justly observed by Burke, that the same attempts will not
be made against a Constitution fully formed and matured,
that were used to destroy it in the cradle, or to resist its
growth during its infancy. But if any rash individual shall in
future times harbour a thought of abetting a Sovereign of
this country, in the long abandoned claim of arbitrary taxation,
the impeachment of the Judges who concurred in the illegal
proceedings against Hampden, will afford him an awful, but
not a solitary, example in the annals of this country of the —
punishment which the national justice denounces against such

persons

ol

persons as have yielded themselves to be the instruments of
despotic power in taking from the people of England, what
they have not consented to give.

But it is obvious that the liberties of a country, however
cautiously they are provided for by existing institutions, would
remain in an insecure condition, if it were in the power of the
Sovereign to change the laws, or to suspend or dispense with
them at his pleasure. It is upon the restrictions with which
the prerogative is bound in this respect, that Fortescue, in the
present Chapter, grounds his eulogium on the permanent ad-
vantages, and the safety of the English Constitution. Before
the time when Fortescue wrote, a king of England had attempted
to invalidate a Statute on the ground that he only dissembled
when he gave his assent to it. ‘‘ Dissimulavimus, sicut oportuit,
et dictum pretensum statutum sigillari permisimus hac vice,”
(Barrington’s Observations on the 15 Edw. IIT. See also his Remarks
on 10 Rich. II.) And an attempt had been made by a Prince of
Wales, to impede the operation of a Statute by a particular entry
upon the Parliament roll, (3 Inst. 325. Ruffhead’s Preface to the
Statutes. Lord Macclesfield’s Trial, Sergeant Pengelley’s Reply.)
And several of our Kings had not scrupled to imitate a scan-
dalous device first introduced in support of the Papal usurpations,
that of evading the laws of the country by means of a “non
obstante,” (Sir R. Atkyns on the Dispensing Power. Luder’s
Tract on the same Subject.) But the authority of Fortescue
will be noticed as being strikingly repugnant to such illegal
and unworthy practices: and when he was Chief Justice he
vindicated, by his conduct, the opinions which his book contains;
for in the Star Chamber he strenuously opposed an appointment
of the Crown, which had been made in contravention of a
Statute of the realm, (2 Inst. 559.) It is true that some great
lawyers have recognized the legality of the dispensing power
in special cases, and within particular limits: and under these
restrictions it is treated as indisputably appertaining to the
Crown by Sir E. Coke, (Co. Litt. 120. 3 Inst. 154. Sir T. Smith de
Rep. lib. ii. c. 3.. Thomas v. Sorrel. Vaughan’s Rep. and the references
in Hargr. Co. Litt. 120. a. n. 3 and 4. See a Dispensation by Let-
ters Patent in Fortescue’s time for Discovering the Philosopher’s
Stone, 4 Inst.74.); but he has pointed out many pernicious effects
arising from the exercise of it; and on an important occasion,
he reprobated, in the most forcible manner, the notion that a
general power of altering the laws was a part of the royal pre- _
rogative; supporting his opinion mainly upon what Fortescue has
written on the subject in the present Chapter. (Case of Pro-
clamations, 12 Rep. See also 3 Inst. ch. 86.) The doctrine in
the text is utterly inconsistent with the position advanced by
Chief Justice Herbert, in the time of Charles II. “that the
laws of England are the King’s laws, and that therefore it. is
. the

32

the inseparable prerogative of the Kings of England to dispense
’ with them.” But is in complete unison with the principles of the
Constitution, as established by the Bill of Rights ; according to
which the dispensing and suspending powers, except where they
are specially conferred by Parliament, are abolished, whatever
shape they may assume, or under whatever pretext they may
be veiled. (See further on this subject, Atkyns on the Dispensing
Power. Hurd’s Dialogue on the Constitution. Cases of Sir Edward
Hales, and of the Seven Bishops in the State Trials. Proceedings
an Parliament relative to the Declarations of Indulgence, tem.
Car, II. and Jac. If, Clarke’s Stuart Papers, Vol. II. p. 80: and see
Hargr. Co. Litt. 120 a. n. 4. the peculiar manner in which the Dis-
pensing and Suspending Powers are noticed in the Declaration of
Rights, and the Bill of Rights. For the Proceedings in Parliament
after the Revolution with respect to the Dispensing Power, See
Gray's Deb. Vol. TX. p. 297 to 307. 314 to 332. 336 to 344, 396.
Chandl. Deb. Vol. I. p. 394.)

33

CHAP. X.

Prince. How comes it to pass, my Chancellor,
that one king may govern his subjects in such an
absolute manner, and a power in the same extent
is unlawful for another king: seeing kings are equal
in dignity, I am surprized that they are not likewise
equal in the extent and exercise of their power.

C

34

CHAP. XI.

THE CHANCELLOR’S ANSWER.
A

Chancellor. I wave, Sir! in the small: piece
referred to, sufficiently made appear, that the king
who governs by political rules has no less power
than him, who governs his subjects at his mere will
and pleasure; yet, that the authority which each ‘has
over their subjects is vastly different, I never dis-
puted it. The reason of which, I shall, in the best
manner I can, endeavour to explain.

GO
(eo

CHAP. XII.

——— >

Formerty, men who excelled in power, being
ambitious of honor and renown, subdued the nations
which were round about them by force of arms; they
obliged them to a state of servitude, absolutely to
obey their commands, which they established into
laws, as the rules of their government. By long
continuance and suffering whereof, the people,
though under such subjection, finding themselves
protected by their governors from the violence and
insults of others, submitted quietly to them, thinking
it better to be under the protection of some govern-
ment, than to be continually exposed to the ravages
of every one, who should take it in their heads to
oppress them. From this original and reason some
kingdoms date their commencement, and the persons
invested with the power, during such their govern-
ment, a regendo (from Ruling) assumed and usurped
to themselves the name of Rex (Ruler, or King) and
their power obtained the name of Regal. By these
methods it was, that Nimrod first acquired to himself
a kingdom, though he is not called a king in the
Scripture, but, @ mghty hunter before the Lord.
For, as an hunter behaves towards beasts, which
are naturally wild and free ; so did he oblige mankind
to be in servitude and to obey him. By the same
methods Belus reduced the Assyrians ; so did: Ninus
by the greatest part of Asea: thus the Romans
arrived at universal empire: in like manner kingdoms
began in other parts of the world. Wherefore, when
the children of Israel desired to have a king, as all
the nations round about them then had, the thing

¢ 2

36

displeased Gop, and he commanded Samuel to shew

them the manner of the king who should reign over
them, and the nature of his government; that is,
mere arbitrary will and pleasure, as is set forth at
large, and very pathetically, in the first Book of
Samuel. And thus, if I mistake not, most excellent
Prince, you have had a true account how those
kingdoms first began, where the government is
merely Regal: I shall now endeavour to trace the
original of those kingdoms, where the form of
government is polvtical ; that so, the first rise and
beginning of both being known, you may more easily
discern the reason of that wide difference which
occasioned your question.

37

CHAP. XIIT.

ee

St. Ausrin, in his book, de Civitate Dei, has it,
“That a people is a body of men joined together
in society by a consent of right, by an union of
interests, and for promoting the common good;”
not that a people so met together in society can
properly be called a body, as long as they continue
without a head; for, as in the body natural, the
head being cut off, we no longer call it a body, but
a trunk ; so a community, without a head to govern
it, cannot in propriety of speech be called a body
politic. Wherefore, the philosopher, in the first
of his politics, says, ‘“‘ Whensoever a multitude is
formed into one body or society, one part must
govern, and the rest be governed.” Wherefore,
it is absolutely necessary, where a company of men
combine and form themselves into a body politic,
that some one should preside as the governing
principal, who goes usually under the name of
King. In this order, as out of an embrio, is formed
an human body, with one head to govern and control
it; so, from a confused multitude is formed a regular
kingdom, which is a sort of a mystical body, with
one person, as the head, to guide and govern. And,
as in the natural body (according to the philosopher)
the heart is the first thing which lives, having in
it the blood, which it transmits to all the other
members, thereby imparting life, and growth and
vigour; so, in the body politic, the first thing which
lives and moves is the intention of the people, having
in it the blood, that is, the prudential care and pro-
vision for the public good, which it transmits and

38

communicates to the head, as the principal part ;
and to all the rest of the members of the said body
politic, whereby it subsists and is invigorated. The
law, under which the people is incorporated, may
be compared to the nerves or sinews of the body
natural; for, as by these the whole frame is fitly
joined together and compacted, so is the law that
ligament (to go back to the truest derivation of the
word, lex a figando) by which the body politic, and
all its several members are bound together and
united in one entire body. - And as the bones, and
all the other members of the body preserve their
functions, and discharge their several offices by the
nerves; so do the members of the community by the
law. And as the head of the body natural cannot
change its nerves or sinews, cannot deny to the
several parts their proper energy, their due pro-
portion and aliment of blood; neither can a king,
who is the head of the body politic, change the laws
thereof, nor take from the people what is their’s, by
right, against their consents*. Thus you have, Sir,
the formal institution of every political kingdom, from
whence you may guess at the power which a king
may exercise with respect to the laws and the
subject. For he ts appointed to protect his subjects
in their lives, properties and laws; for this very end
and purpose he has the delegation of power from the
people; and he has no just claim to any other power
but this. Wherefore, to give a brief answer to
that question of your’s concerning the different

* In Hobbes’s Leviathan, a metaphor is pursued at great
length, which closely resembles the one contained in the text ;
and in another part of his singular work, that writer explains the
generation of the great Leviathan, or a commonwealth, very
much in the same manner, that Fortescue accounts for the
origin of a State. But these authors are at total variance,
in the principles of government, which they deduce from their
views of the formation of society, (See Clarendon’s Survey of the
Lewtathan, for the Propositions contained in that ‘work which are
subversive of liberty, p. 190.)

39

powers which kings claim over their subjects, { am
firmly of opinion that it arises solely from: the
different natures of their original institution, as
you may easily collect from what has been said.
So the kingdom of England had: its original from
Brute and the Trojans, who attended him from
Italy and. Greece, and became a mixt kind of
sovernment, compounded of the regal and political”.
So Scotland, which was formerly in subjection to
England in the nature of a dutchy, became a govern-
ment partly regal, partly political®. Many other

» «Brute and the Trojans.” This hero was supposed to be
the great grandson of Aineas: the first account of him is in
the History of Geoffrey of Monmouth, who in the reign’ of
Henry the Second, published a History of Britain, translated,
as he pretends, out of the British tongue. The story may
be perused in most of the old- Chronicle writers, and even
Milton has introduced it, into his History of England: White-
locke, in his notes upon the Parliamentary Writ, gravely rests
a part of his speculations upon the truth of that tradition ;
and some writers have been so persuaded of the real existence
of this personage, as to engage in a controversy, respecting his
coat of arms. The city of London, availed themselves of the
fiction, in several of their petitions, for the purpose of referring
the origin of their customs and privileges, to the times of ancient
Troy. Camden in his Britannia, says, “ That to reject the story,
would be to wage war against time, and fight against a received
opinion ;” he has, however, adduced several arguments, which
divest the tradition of every title to belief. The circumstances
of the history of Brute, have suggested to several persons
the design of an epic poem, and have been frequently celebrated
in verse, (Lord Teignmouth’s Life of Sir W. Jones, Appdx. John«
son's Life of Pope, p. 84. Verses of Gildas in Virunnius’s History,
- p.- 6. Drayton's Polyolbion. And see further concerning this story,
Selden’s Notes to Drayton’s Polyolbion. Leyland’s Assertio Arturii,
p- 8. Ser W. Temple’s History of England. Letter of Edw. I. to
Pope Boniface. X Scriptt. 2483. For the Claim of the City, Stow’s
Survey, p. 6.)

* The question respecting the subjection of Scotland to the
English Crewn, has given rise to a multitude of treatises, and has
been advocated on different sides, by authors of high literary
reputation. A short statement of the authorities, upon which the
question depends, will be found in Dr. Duck’s Treatise, “de Usu
et Auctoritate Juris Civilis:” and it is a necessary caution, in
reading the text of Fortescue, to bear in mind, that Rapin, who
collects the proofs at large, on both sides, in his history, decides
the case in favour of the Scotch.

AO

kingdoms, from the same original, have acquired the
same form of government; whence Diodorus Siculus,
in his second book of Ancient History, concerning the
Egyptians, says thus: “The kings of Egypt originally
did not live in such a licentious manner as other kings,
whose will was their law: but. were subject to the
same law, in common with the subject, and esteemed
themselves happy in such a conformity to the laws.”
For, it was their opinion that many things were done
by those who gave a loose to their own will, which
exposed them to frequent and great dangers and
disadvantages*. ‘The same author in his fourth book
writes thus: “He who is chosen king of Ethiopia
leads a life conformable to the laws, and behaves
in every respect according to the customs of his
country, neither rewarding, or punishing any one;
but according to the laws handed down from his
predecessors.” In like manner he writes concerning
the king of Saba in Arabia Felix: in the same
manner concerning other kings in ancient history;
who, pursuing the same methods of government,
reigned prosperously and with reputation.

* With the same sentiments, Voltaire writes to the king of
Prussia.

Ouvrons du monde entier les annales fideles,

Voyons-y les tyrans; ils sont tous malheureux:

Les foudres qu’ ils portaient dans leurs mains criminelles
Sont retombés sur eux.

Ils sont morts dans l’opprobe, ils sont morts dans la rage—

Mais Antonin, Trajan, Marc-Aurele, Titus,

Ont eu des jours sereins, sans nuit et sans orage,
Purs comme leurs vertues.

Al

CHAP. XIV.

<< o

Prince. You have, my good Chancellor, with
the perspicuity of your discourse, dispelled that
. darkness with which my understanding was obscured,
and I now perceive plainly, that no nation ever
formed themselves into a kingdom by their own
compact and consent, with any other view than
this, that they might hereby enjoy what they had,
against all dangers and violence, in a securer manner
than before: and consequently, they would find
themselves disappointed of their intention, if after-
wards the king they had so set over them should
despoil them of their properties, which was not
lawful for any of the community to do before such
appointment made. And the people would be in
yet a more dismal state, in case they were to be
governed by strange and foreign laws, such as
they had not been used to, such as they could not
approve of: more especially if those laws should
affect them in their properties, for the preservation
whereof, as well as of their persons, they freely
submitted to kingly government; i¢ is plain, that
such a power as this, could never originally proceed
from the people ; and if not from them, the king
could have no such power rightfully at all: on the
other hand, I conceive it to be quite otherwise with
that kingdom which becomes so by the sole authority
and absolute power of the king. In this case, the
people become subject to him upon no other terms,
but to obey and be governed by his laws, that is,
his mere will and pleasure. Neither, Sir, has it
slipt my memory, what you have elsewhere, with

42

solid reasons, demonstrated in your treatise, concern-
ing the Law of Nature, that the power of both kings
is in effect equal; seeing a possibility of doing amiss,
which is the only privilege the one enjoys above
the other, can be called an addition of power, no
other than a possibility to decay or die; which, as
it is only a possibility of being deprived of some-
thing valuable, such as life or health, is for this
reason rather to be called a state of wnpotency,
a real weakness. “For power (as Boettus observes)
is always for some good end or purpose ;” and there-
fore to be able to do mischief, which is the sole
prerogative an absolute prince enjoys above the
other, is so far from increasing his power, that it
rather lessens and exposes it. The blessed spirits
above, which are already. fixed in their seats of
happiness, and put beyond a possibility of sinning,
are, in that respect, superior to us in power, who
are always liable to do amiss, and to work iniquity
with greediness. It only now remains to enquire,
whether the law of England, to the study whereof
you invite me, be as well adapted and effectual for
the government of that kingdom, as the Cail Law
(by which the holy Roman Empire is regulated)
is generally thought to be, for the government
of the rest of the world. Satisfy me but in this
point by some clear and convincing proof; and
I will immediately apply myself to the study you
propose, without troubling you with any more of
my scruples*.

* Fortescue, in the preceding Chapters, attempts to account for
the characteristic principles of the English Constitution, by
referring to the circumstances, which he supposes to have
attended the first. institution of civil government in the Island:
so most authors, who have written upon the subject of poli-
tical institutions, have founded their theories on an imaginary
state of nature, out of which they suppose men to have passed
into a state of civilized society. The descriptions which have
been given of a state of nature, are as various as the systems

of

AS

of which it has formed the basis. Hobbes, Locke and Rousseau,
all differ from each other, in the manner in which they represent
this condition of mankind ; whilst other writers, apparently with
more reason, have considered the idea of a state of nature,
to. be altogether negative. The confused and contradictory
notions of Blackstone, respecting the institution of government,
as arising out of the state of nature, have been ably animadverted
upon by Mr. Bentham; and the subject has been discussed
with much talent, in an interesting treatise by a foreign. writer,
upon the influence of political theories in modern Europe, -
(Heeren, ueber die Entstehung, die Aushildung und den praktischen
einfluss der politischen theorieen in dem neueren Europa.) It will
perhaps be thought, that the political order which we con-
template in England, is not to be attributed. to the circum-
stances that accompanied the transition of our ancestors from
out of the state of nature, to one of social life and civil govern-
ment; nor to any balance between the monarchical,.aristocratical
and democratical powers, which the sagacity of our forefathers
may have framed ; but that. it has been the gradual result of time
and experience ; the passions and the wants. of man combined
with the various emergencies of his situation. It is true, that
the prudence and. good sense of our countrymen, have always
made. them slow to adopt any alteration of institutions, which
have been found not incompatible with national happiness, if
not productive of it in themselves, during a succession of ages ;
that they have indignantly resisted every attempt at innovation
in their government, by arbitrary means: and accordingly. the
paradox of Fielding, “that the Constitution of this Island is
nothing fixed, but just as sa, ae as the weather,” may be
thought to have been deservedly reprobated by Sir W. Jones.
Nevertheless, it will probably be considered, if we trace the pro-
gress of our Constitution, that its principal advantages have arisen
from the frequent occasions upon which it has yielded to the
changes prescribed by public opinion. We may, consequently,
hesitate to adopt the account, which is given in the text, of
the formation of the English Constitution: but no praise can
be too ample for the explanation which Fortescue has left us,
of the principles, which, in mixed monarchies, ought to influ-
ence the governors and governed, and which constitute the
sole legitimate ground of the subject’s obedience. The true
“‘tenure of Kings and Magistrates,” is not less explicitly. and
boldly asserted, in the preceding chapter, by the Chancellor
_of Henry the Sixth, than by. the immortal advocate of the
English people. The sentiments of Algernon Sidney were
not more inimical to the power of tyrants, or more repugnant
than those of Fortescue to the abject language of the Oxford
decree, or that which disturbed the last moments of Russel.
And when the Chancellor writes, “ Ad tutelam legis subditorum,

ac

AA

ac eorum corporum et bonorum Rex hujusmodi erectus est,
et hanc potestatem a populo effluxam ipse habet, quo ei non
licet potestate alia suo populo dominari,” he maintains the
same fundamental principle of government, which when it
was developed and vindicated by Locke, ensured to that great
philosopher the lasting gratitude of his country, and the admi-
ration of Europe. It is important to observe the entire absence
from the writings of Fortescue, of those obscure and mystical
definitions of the prerogative, which, in after times, had such
a fatal influence in preventing the King and the people from
understanding, and thereby appreciating each others rights, as
being, in fact, their own. The simple description of royal power
given in the text, is incompatible with the metaphysical distinction
of James, between a king in abstracto, and a king in concreto;
nor does it more accord with the notions respecting the pre-
rogative promulgated by Cowell, and for which he incurred
the censure of the Parliament; and it is totally inconsistent
with the doctrine, that the little finger of the King is heavier
than the loins of the law, and that every political institution
and regulation, must give place to the prerogative, as being
endued in this respect with power, like that of the strong
man Samson, who though he was bound by his own consent,
could not be held under restraint when an emergency arose.
(The Trew Law of Free Monarchies, and Speech at Whitehall
a. D. 1609. K. James’s Works. Cowell’s Interpreter, Art. Prero»
gatiwe, Parliament, King. Sir J. Davis on Impositions. Strafford’s
Impeachment. St. Tr. Strafford’s Letters and Disp. Vol II. p. 888,
Letter to Judge Hutton.) The King’s prerogative is nothing more
than the King’s law: “for example,” says Selden, “if you
ask whether a patron may present to a living after six months
by law, I answer no; if you ask whether the King may,
I answer he may by his prerogative, that is, by the law that
concerns himself in that case.” (Selden’s Table Talk Tit. Pre-
rogative. Resolution of the Judges in the Case of Proclamations,
12 Rep. “ Political Reflections,” by Saville, Lord Halifax.) Locke
has observed, that in the infancy of Commonwealths, the Govern-
ment is almost all prerogative. The restrictions which are subse-
quently imposed upon the executive power, are to be regarded
as improvements in the legislation of the country, tending to
confine the authority of the chief magistrate, to such a measure
and extent, as is indispensible for the proper execution of his
trust; they cannot reasonably be deemed invasions upon his
established rights. And therefore a Prince of the Stuart family,
could have no just claim to the extensive prerogatives enjoyed
by the Tudor line, when it became manifest, that the sentiments
of the nation were averse to his possessing them. A wise
people will foresee numberless evils, of a frightful character,
that may arise from a rash diminution of the prerogative: a free

nation,

AD

nation, will never suffer themselves to be told that they do not
possess a legitimate right to alter, to curtail, or to annihilate
it. The doctrines in the text, were not propagated for the first
time by Fortescue, with the intention of captivating the affec-
tions of his countrymen, in favour of an exiled Sovereign, as
Sir John Finch suggested; but they will be found to be no
less unequivocally asserted, in the more ancient treatises of
Bracton and Fleta, (See the principal Passages to this effect in
these. Authors, referred to in Hallam’s Middle Ages, c. 8.
Milton’s Defensio Pro. Pop. Angl. and Hurd’s Dialogue on the
Constitution. The Mirror regards the King as being under the
protection of the Law, in the same manner as an Infant, ch. 4. §. 22.)
And the same opinions are maintained by Fortescue, in his
work upon political monarchy, which he published after his
reconciliation with Edw. IV. The notion of the divine right
of kings, had indeed been promulgated in England, previous
to the time when Fortescue wrote, (Bishop of Carlisle’s Speech
on the Deposition of Rich. II. Hayward’s Life of Henry IV.)
A parliamentary title to the throne, however, became esta-
blished on more than one signal occasion, (Brief History of the
Succession, Somer’s Tracts. Discourse iv. in Foster’s Crown Law.)
And the deference to the authority of Parliament, evinced by
princes in the heat of victory, in the raptures of a successful
Revolution, and before the armies could be disbanded, had. stampt
a remarkable feature on the early history of this country. (Old-
castle’s Remarks on English History, Letter 8.) Neither did the
‘opinion of a divine and indefeasible right in kings, make much
progress until a comparatively late period. Sir Thomas More, in
a remarkable discourse, which he held with the Solicitor General,
respecting the supremacy, treats the subserviency of the right
of the Crown to that of Parliament, as a truth not to be disputed ;
and by an early Statute of Elizabeth, it was made treason, to
call in question the power of Parliament to alter the succession.
It has been conjectured, that the circumstances which attended
the. reception of the Reformation into England, first rendered
prevalent this opinion, (Hurd’s Dial. on the Constitution.) The.
peculiar nature of the title of the house of Stuart to the throne,
may have contributed materially to disseminate it, (Burnet’s Own
Times, last Edition, Vol. III. 382 n. Hargrave’s Preface to Hale’s
Jurisdiction of the Lords, 145 n. Luder’s Tract on the Will of
Hen. VIII.) It is called in a speech of Lord Shaftsbury’s, a
Laudean Doctrine; and certainly that prelate conspired with
his Sovereign, to sanction the delivering of tenets so heinous in
their nature from the pulpit: a profanation of the religious
feeling of the country, only to be paralleled by the introduction
of them as articles into national oaths, (Transactions respecting
Manwaring and Sibthorp, Tem. Car. I. Progress of Arbitrary
Power, by Andrew Marvel. Letter from a Person of Quality, Tracts

Tem.

46

Tem. Car. II. Debate about the Subscription to Passive Obedience in

Echard’s History, Vol. II. p. 379. et seg. and Act of Uniformity,

the Corporation Act, Militia Act, and Five-Mile Act.) It-is toa

convocation held in the time of James I, that the origin of the

patriarchal theory of government is to be referred; which, when

it was afterwards supported by Filmer, had a practical influence,

and acquired a celebrity, that can only be accounted for,‘ by its

peculiar adaptation to the reading and genius of the times.—The _
debates upon the subject of the exclusion, must have contributed

very much to enlighten the understandings of men, and to teach

them to separate the objects of government, from the instruments

by means of which those objects are to be obtained; but it

was reserved for the event of the Revolution, practically to

convince mankind of the happiness which a nation may reap,

by resolving, at a fit crisis, to exchange the manager of the

public trust, rather than frustrate the purposes for which he

was invested with power. The distinguished Statesmen, who

contributed to renovate the Constitution of this country, at the

period of the Revolution, effected no doubt an important change

in the opinions of the nation, respecting the true ends of
Government, in bringing back the minds of men to the liberal

views and principles, which were to be learnt from a writer of
the age of Henry the Sixth. And it is no disparagement of the
high merit, which will always be ascribed to them, by a

nation, if, in the present day, we are struck with a sense of
impropriety, perhaps of the danger, of resting the indestructible

privileges of mankind, upon the fiction, adopted by them, of
an original compact, (Hardwick’s State Papers, Vol. II. p. 401.

Sacheverell’s Trial, Hargr. St. Tr. Burke’s Appeal to the Old Whigs.

Hume's Essays on Resistance, and the Original Compact. Bolinbroke’s

Dissertation on Parties. Paley’s Political Philosophy. Bentham’s

Fragment on Government. Sir W. Temple's Essay on Government.)

The manifesto of the Representatives of the United States of
America, when they declared their independence of Great Britian,

expresses more correctly the dictates of nature and of wisdom.

“We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain ina-

lienable rights ; that among them are life, liberty, and the pursuit

of happiness: that to secure these rights, governments are instituted

amongst men, deriving their just powers from the consent of the

governed: that whenever any form of government becomes de-

structive of these ends, it is the right of the people to alter or

abolish it, and to constitute a new government, laying its founda-

tions on such principles, and organizing its powers in such form,

as to'them shall seem most likely to effect their safety and happi-

ness.”

AT

CHAP. NY:

a

Chancellor. I opserve, Sir, that you have
given attention, and remember well what I have
hitherto been discoursing upon, therefore you have
the better title to receive an answer to your question.
Know then, that all human lawsare either the Law of
Nature, Customs, or Statutes, which are also called
Constitutions: but, the two former, when they are
reduced into writing, and made public by a sufficient
authority of the Prince, and commanded to be ob-
served, they then pass into the nature of, and are
accepted as constitutions or statutes, and, in. virtue
of such promulgation and command, oblige the
subject to the observance of them under a greater
penalty than otherwise they could do. Such are a
considerable part of the Cal Laws which are digested
in great volumes by the Roman Emperors, and by
their authority commanded to be observed: whence
they obtain the name of the Covel Law, in like manner
as all other zmperial edicts or statutes. If therefore,
under these three distinctions of the Law of Nature,
Customs and Statutes, the fountains and originals
of all laws, I shall prove the Law of England
eminently to excel, then I shall have evinced it
to’ be good and effectual for the government of
that kingdom. Again, if I clearly make out that
it is as well accommodated for the good of that
- State, as the Crvil Laws are for that of the empire
then I shall have made appear, that the Law of
England is not only an excellent law, but that,
in its kind, it is as well chosen as the Civil Law.
In proof of this, I proceed.

48

CHAP. XVI.

a oe

Ture Laws of England, as far as they agree
with, and are deduced from the Law of Nature,
are neither better nor worse in their decisions than
the laws of all other states or kingdoms in similar
cases. For, as the philosopher says, in the fifth
of his Ethics, “The Law of Nature is the same,
and has the same force all the world over.”” Where-
fore I see no occasion to enforce this point any
farther; so now, the enquiry rests, what the customs
and statutes of England are: and, in the first place
we will consider and look into the nature of those
customs*.

* There is a fine passage in Cicero de Republica, descriptive
of the Law of Nature. “Huic legi nec abregari fas est neque
derogari ex hac aliquid licet, neque tota abrogari potest. Nec
vero aut per senatum aut per populum solvi hac lege possumus.
Neque est querendus explanator aut interpres ejus alius nec erit
alia lex Rome, alia Athenis, alia nunc, alia posthac. Sed et omnes
gentes et omni tempore una lex et sempiterna et immutabilis
continebit, unusque erit communis quasi magister et imperator
omnium Deus, ille legis hujus inventor, disceptator, lator: cui
non parebit ipse se fugiet ac naturam hominis aspernatus, atque
hoc ipso luet maximas poenas etiam si cetera supplicia que putan-
tur, effugint.” lib. 3. §. 22. The subject of the Law of Nature
has been treated of with great learning by the foreign Jurists,
and some Authors of our own country have written profoundly
upon it. (Bishop Cumberland de Lege Nature. Tyrrel’s Dis-
quisition on the Law of Nature. Selden de jure Naturali et
Gentium juxta Disciplinam Hebreorum. See also Bishop of Cloyne
on Passive Obedience. First Book of Hooker’s Ecclesiastical Polity.)
The question whether there exist any uniform dictates of nature
independent of the consideration of utility, is one which to the
philesopher does not admit of a very easy solution. But =

. frien

AQ

friend to the institutions of his country, will watch, with vigilant
care, an appeal to so vague a standard as that of natural right,
in any question, which is capable of being determined by the
municipal law. Much uncertainty and perplexity arising from
this source, is to be found in our legal authorities. Thus some
eminent lawyers have expressed an opinion that an Act of
Parliament made against natural justice, or the law of God,
is void, and the reason assigned is, that ‘“leges nature sunt im-
mutabilia” and they are “leges legum.” (Hobart 87. 12 Mod. 687.)
And hence questions have arisen, whether usury was against the
law of God; the same of Commendams; whether a statute that
no alms should ‘be given, would militate against that law, and
whether it enjoined that no excommunicated person should
maintain an action: again, the Law of Nature has been thought
to direct, that gifts ought to become void by reason of ingratitude.
(3 Inst. 151. Hob. 149. Doctor and Student. Dial. i. ch. 6. Dial. ii.
ch. 45.) Perhaps Sir E. Coke may be considered to have carried
this principle to a most dangerous extent, in the maxim which
he so frequently repeats: ‘Nihil quod inconveniens est est
licitum.” From the same mode of reasoning is derived the distinc-
tion between “mala prohibita” and “mala in se.” (Thomas v. Sorrel
Vaughan’s Rep. Foster’s Disc. Disc. ii. ch. 1. 12 Rep. 76. Lord
Macclesfield’s Speech on his Impeachment. Stilling fleet on Resig-
nation Bonds, and see Taylor’s Civil Law, 129 et seq.) And
partly from the same cause has arisen the great liberty which
Courts of Justice have assumed, especially in ancient times, of
construing Statutes by equity. (Hargr. Co. Litt. 24 6.n. Hatton
on Statutes. Plowden’s Comm. p. 465.) Blackstone in his Com-
mentaries, treats of the Law of Nature as a branch of the Law
of England, and as paramount to it in all cases in which they
may conflict. (1 B/. Comm. 42. Bentham on Government, 109.
Doctor and Student, Dial. i. ch. 5. See also the Case of Forbes v.
Cochrane. 2 Barnewall and Cresswell’s Rep. Protest of the Lords
on the Occasion of the Royal Marriage Act, 12 Geo. I1/.) Perhaps
it will be thought that such an opinion has a tendency to en-
courage Judges in directing their conduct by what Coke terms
the crooked cord of discretion, rather than being guided by the
golden metewand of the law. Examples abound in the History
of this Country, in which the injunctions of the Law of Nature
have been pleaded as a sanction for the most flagrant violations
of Civil rights. It was the argument, used by Salmasius, to
prove that Charles was not accountable for his arbitrary pro-
ceedings: Finch adduced the Law of Nature in support of
Ship Money: and in the celebrated declaration of James II.
respecting liberty of conscience, it is urged as a reason to justify
the dispensing power. In some instances of very rare occurrence,
as, for example, the case of the “ Postnati,” in which the municipal
laws are silent, it may become the duty of a Judge to enquire

how

D

50

how foreign nations have legislated, or what individuals, eminent
for their reason, have thought; and he will properly consult the
natural dictates of his own understanding, corrected and matured
by reflection and experience: but it appears to be a dangerous
principle, on any occasion, to abandon the plain sense of the
Common Law, as handed down by received tradition, or the
intentions of the Legislature, as collected by an interpretation
of its language, consonant as well to good sense as to grammatical
accuracy, for precepts extracted from the Code of Nature, in the
tables of whose law, persons will be apt to believe that they can
read whatever they wish to discover.

CHAP. XVII.

Tue realm of England was first inhabited by
the Britons; afterwards it was ruled and civilized
under the government of the Romans; then the
Britons prevailed again; next, it was possessed by
the Saxons, who changed the name of Britain inte
England. After the Saxons, the Danes lorded it
over us, and then the Saxons prevailed a second
time; at last, the Normans came in, whose descend-
ants obtain the kingdom at this day: and, during
all that time, wherein those several nations and their
kings prevailed, England has nevertheless been con-
stantly governed by the same customs, as it is at
present: which if they were not above all exception
good, no doubt but some or other of those kings,
from a principle of justice, in point of reason, or
moved by inclination, would have made some alter-
ation or quite abolished them, especially the Romans,
who governed all the rest of the world in a manner
by their own laws. Again, some of the aforesaid
kings, who only got and kept possession of the
Realm by the sword, were enabled by the same
means to have destroyed the laws and introduced
their own. Neither the laws of the Romans which
are cried up beyond all others for their antiquity ;
nor yet the laws of the Venetians, however famous
in this respect, their Island being not inhabited
so early as Brita; (neither was Rome itself at
that time built;) nor in short, are the laws of any

D2

52

other kingdom in the world so venerable for their
antiquity. So that there is no pretence to say, or
insinuate to the contrary, but that the laws and
customs of England are not only good, but the
very best*.

* This Chapter is quoted with great respect by Sir E. Coke
in a Preface to his Reports, where he assents implicitly to every
thing contained in it, and supports the opinion in the text by
additional authorities. But Dr. Hickes has shewn that the great
oracle of the law is not entitled to much deference in questions
connected with the Saxon period: and Spelman in his Treatise
upon Terms, controverts the notions of Fortescue upon this
subject and treats them -with ridicule. He refers to the laws
of Hoel Dha, as exhibiting a model of the British customs
which appear from thence to be inconsistent with our own.
Some antiquarians, however, have found the rudiments of several
of our institutions among the British Laws. (See Tracts by
Mr, Jones and Mr. Tate, in Hearne’s Collection.) In a Tract
written by Mr. Hakewell, in which a passage in the text
respecting the origin of our Laws, is cited, and said to be
destitute of proof, the introduction of the Danish Law ‘is’: much
insisted upon, and, in that Gentleman’s opinion, the’ Danish
Law mingled with some points of the Saxon Law, and fewer
of the Norman Law, constitute the Common Law now in use.
On the other hand, Sir W. Temple, in the Introduction to
his History, denies that any change of our Laws happened by
the Danes. In the same place he makes mention of Fortescue
having affirmed that our customs have been preserved through
five Governments, and he observes that it is doubtful whether
it can be so easily proved as affirmed, though it may be with
more certainty of the three last. Selden in his Dissertation
upon Fleta, has exhibited the extent to which the influence
of the Roman Law prevailed in England, from the conquest
of this Country by that Nation, to the reign of Edward III.
(See also Duck de Ortu et Progressu Juris Civilis. Dr. Pettingal
on Juries. _Hallifax’s Civil Law. Hurd’s Dial. on the Constitution.)
The frequent reference to the books of the Civil Law by our
early writers upon legal subjects, has been noticed in a pre-~
ceding page. And in the present day these valuable records
of legal wisdom are occasionally consulted, with a view to
the determination of judicial questions. (Burnet’s Life of Hale,
p- 24. Lord Ellesmere’s Case of the Postuati. Blackstone’s In-
troduction. 3 Burr. 1670. Comyn’s Rep. p. 738. Eunomus,
Notes to Dial.i.) It is difficult to point out that precise portion
of the Law, which existed in this country anterior to the Norman

conquest.

DS

conquest. Burke refers to that event as the great «era of our
Laws; but Sir W. Temple on a consideration of what the
country lost, what it preserved, and what it gained by the
Norman conquest, is of opinion that the forms of our Govern-
ment and Institutions were not materially changed at that
time; and this agrees with what Sir Matthew Hale has written
in his History of the Common Law. We read of four different
species of law which are said to have been in force in the
Saxon times, but the existence of this division of the laws
has been much doubted by eminent legal antiquarians; and
but little light can now be obtained respecting those com-
pilations, called the “‘ Domboes,” which are known to have been
made before the cenquest: The Saxon Laws which compose
the modern collections of Lambard and Wilkins have not all
the same degree of credit for genuineness; and the contrast
which their contents present, with those of Glanville’s Treatise,
shew the establishment of very different principles of law in
the time of Henry the Second, from any which they contain.
A discussion concerning the laws that existed in this Country
anterior to the conquest, has been warmly agitated in the
enquiry respecting the antiquity of Juries; in the celebrated
question relative to the imtroduction of feudal tenures into
this country; and in the more important controversy regarding
the origin of Parliament. Some investigations respecting other
points involving a research into the changes intreduced by the
Normans in the Saxon Institutions, will be seen in Madox’s History
of the Exchequer, and Hickes’s Prefatory Dissertation to his The-
saurus; and much valuable information explanatory of the connec-
tion existing between the Laws of England and those of Normandy,
may be gathered from Hoiiard’s Treatise entitled “ Anciennes
loix des Francois conservées dans les contumes Angloises.”
Some historical facts in the reign of William the Conqueror,
shew that he professed on several occasions a respect for the
national Institutions of the Saxons, and for the laws of Edward
the Confessor: and perhaps the account given in the Dialogue
of the Exchequer, respecting his proceedings in regard to the
legislation of the country, will be received as. being most pro-
bably authentic. “ Propositis legibus Anglicanis, quasdam re-
probavit, quasdam autem approbans, illis transmarinas Neustria
leges qua ad regui pacem tuendam efficacissime videbantur,
adjecit.”. Burke has remarked in his Introduction to English
History, the evil consequences that are to be ascribed to an
opinion, which he says is hardly to be eradicated from the
minds of our lawyers “that the English Law has been formed
and grown up among ourselves; is quite peculiar to this Island ;
and has continued in much the same state from an antiquity
to which they hardly allow any bounds.” It is true that Sir
E. Coke in several parts of his writings, speaks of the Eng

[bps Mas

a4

people as being as well in respect of their Civil Institutions
as of their insular situation, “toto divisos orbe Britannos.”
But Bacon takes a pride in observing, “that our laws are as
mixed as our language; ahd as our language is so much the
richer on that account, so are the laws more complete.” No
writers have viewed more philosophically than Lord Bacon
and Sir Matthew Hale, the alterations which must necessarily
be made in the laws of a nation, during its progressive ad-
vancement in refinement and greatness; none have insisted
with more energy on the policy of revising those forms and
institutions which the varying manners of the age, the new
wants of society, or a more enlightened system of jurispru-
dence render inexpedient.

Gt
wr

CHAP. XVIII.
————

Ir only remains to be enquired whether the
Statute Law of England be good or not. And,
as to that, it does not flow solely from the mere
will of one man, as the laws do in those countries,
which are governed in a despotic manner; where
sometimes the nature of the Constitution so much
regards the single convenience of the Legislator,
whereby there accrues a great disadvantage and
disparagement to the subject. Sometimes also,
through the inadvertency of the Prince, his inactivity
and love of ease, such laws are unadvisedly made
as may better deserve to be called corruptions, than
laws. But, the Statutes of England are produced
in quite another manner: Not enacted by the sole
wil of the Prince, but, with the concurrent consent
of the whole kingdom, by ther Representatives
in Parliament. So that it is morally impossible
but that they are and must be calculated for the
good of the people: and they must needs be full
of wisdom and prudenee, since they are the result,
not of one man’s wisdom only, or an hundred,
but such an assembly as the Roman Senate was
of old, more than three hundred select persons’;

* At a period, when tenure constituted the only right to
a seat among the Barons, the number, whether of the greater
or lesser nobility, depended upon principles, which were
peculiar to the times. After the adoption of writs, but when
a summons to Parliament did not confer an hereditary right,
or even a right for the life of the individual to attend its
meetings, the House of Peers, must have experienced consi-

derable

56

as those who are conversant in the forms and method
of summoning them to Parliament, can more dis-
tinctly inform you. And, if any bills passed into
a law, enacted with so much solemnity and fore-
sight, should happen not to answer the intention
of the legislators: they can immediately be amended
and repealed, in the whole, or in part, that is,
with the same consent and in the same manner
as they were at first enacted into a law. 1 have
thus laid befere you, my Prince, every species

derable fluctuations in the number of its members: accordingly
we find, that, in the reign of Edw. I, the number of summonses
generally amounted to eighty, whereas in the latter period
of his successor’s reign, they sometimes were under forty, and
never were as many as fifty. In later times, the Peerage has
not remained stationary, and we read m the history of Queen
Anne, that it received an addition of twelve members in one
day, who were created for the purpose of supporting the
measures of a particular administration. So the numbers of
the House of Commons, must have greatly varied in early
times, from the diseretion which was. formerly re in
Sheriffs, as to the issuing of their precepts to boroughs; from
the excuses, by which particular towns exonerated themselves
from the charge of appointing Representatives; from the power
invested in the Crown, of giving birth to the elective franchise,
and which was exercised at least from the reign of Edw. IV, to
that of Car. IJ. Historians do not appear to have attended suffi-
ciently to the considerations which these circumstances suggest ;
for the character of the two assemblies, both in respect of their
relative situation to each other, and their collective capacity, must
have been very different, at different times; and whilst the names
of Parliament, Lords and Commons, have continued the same, the
ideas they have been intended to represent, have undergone a va-
‘riety of transmutations.. The attention of the nation was drawn
to this subject, in the reign of George I, on the occasion of
the Bill, which was introduced for the purpose of limiting the
number of the Peerage. (Selden’s Titles of Honour. Madox’s
Baronia Anglica. Dugdale’s Summonses to Parliament. Collins's
Claims. Hale’s Jurisdiction of the Lords. Report of Lords’ Com-
mittees respecting the Peerage. Elsynge on Parliaments. W hite-
locke’s. Parliamentary Writ. Brady on Boroughs. Madox’s Firma
Burgi. Glanville’s Reports. Merewether on Boroughs. Coxe’s Life
of Walpole, and Pamphlets respecting the Peerage Bill, there referred
to. Somers’s Tracts, George I.)

57

of the Laws of England, you will of yourself easily
apprehend their nature, whether they be good or
not, by comparing them with other laws: and, when
you will find none to stand in competition with
them, you must acknowledge them to be, not only
good laws, but such, in all respects, as you yourself
could not wish them to be better’.

> The leading features of the Constitution of Parliament, are:
described in this Chapter, in a manner very much the same
as that, in which an author of the present day would represent
them. The gradual formation, and settling of that assembly,
according to the sketch here given of it, is a subject of very
curious and difficult enquiry. Much learning and _ talent
has been applied, to determine the question of the participation
of the Commons, in the national councils, during the Saxon
and ‘Anglo-Norman period. Sir M. Hale, who was peculiarly
qualified for developing this obscure subject, confesses that
he is unable to do more than guess what was the ancient right,
and form of Government, anterior to the time of Henry III.
The nature of the political assemblies im the reign of that king,
derives considerable illustration from an abundance of public
records, and from the contemporary writings of two great
authorities for History and Law, Matthew Paris and Bracton-
After tracing the history of the branches of the Legislature,
to the period of their first existence im a political capacity,
much learned research has been pursued, with a view of
ascertaining, by what authority, and according to what form
of appointment, the individual members of either House have
occupied their seats. An enquiry, which embraces in the
House of Lords, the distinctions between the greater and lesser
Barons, Barons of the old and new feoffment, Barons by tenure,
investiture, writ, patent, and by Act of Parliament, Bannerets,
Peers, together with the parliamentary rights of Bishops.
And in the house of Commons, imvolves the consideration
of the ancient Constitution of the County Courts; the early
History of Towns, Leets, and Corporations; the manner in
which the various classes of the community have been repre-
sented at different periods, especially the tenants in ancient
demesne, and the tenants of Peers; and the principle upon
which Burgesses were originally summoned to Parliament.
After this examination of the Constitution of the Houses of
Parliament respectively, a further object of investigation, has
been the relative situation, in which the two branches of the
Legislature, have stood to each other at different periods: which
leads to the questions, respecting the division of the houses ;
the

58

the ancient manner of voting by the Knights; the right of
judicature in the Lords; the Constitution of the Three Estates ;
and the nature of the several ancient councils of the King.
It would be foreign to the purpose of this note, to dwell
longer upon the topics, which have been briefly adverted to ;
but it may not be thought irrelevant, to institute a short enquiry,
respecting the period, at which Parliament appears by authentic
records, to have been settled according to the form and Constitu-
tion, which it had assumed, when Fortescue describes it: especially
as it was in the reign in which Fortescue wrote, that the represen-
tation of the Commons, had become an object of so great national -
importance, as to have occasioned the famous Statute, by which
the election of Knights of the Shire is regulated in the present day ;
and a seat in Parliament, as it appears, both from the public
history, and the private memorials of those times, often gave
rise to an animated scene of contention. By a Statute of
Edward II, a declaration is made, that every legislative measure,
not sanctioned by the consent of the Kings, Lords, and Commons,
should be void. The Peerage Committee of the Lords observe,
that this is the first solemn Act they have discovered, by which
the Constitution of the legislative assembly of the Realm, is
distinctly described, subsequently to the Charter of John,
which in their opinion, did not extend to require the common
consent to all legislative measures, but only to the imposi-
tion of Scutage: it is, however, material to observe, that the
Statute of Edward II, states the provisions declared in it,
to be according to custom. The same Committee refer to the
reign of Edward III, for the first declaration in Parliament,
that the Knights of Shires should be elected by all the free-
holders of the County, Suitors of the County Court, though
no definitive law seems to have been made upon the subject.
until the 7th of Henry IV: they advert to the proceedings
relative to the deposing of Richard the Second, as indicating
the time, from which Peers were considered to be separated,
in their Parliamentary capacity, from the rest of the laity ;
whilst the other tenants in chief of the Crown, who accord-
ing to the Charter of John, were in some measure confounded
with the nobility, as also the tenants of the Peers were intermixed
with the mass of the laity, and were treated as a distinct
estate, represented in Parliament, by the elected Knights,
Citizens, and Burgesses. Mr. Hallam has noticed a precedent
in the 9th of Edward IV, as affording the earliest authority
for two important points of Parliamentary Law, that the
Commons possess an exclusive right to originate money-bills,
and that the King ought not to take notice of what is passing
in’ Parliament. It is from these records, that the period
may be collected, at which the Constitution of the Legislature
of the Realm became completely settled. :
tt

59

It is often difficult to ascertain what has been enacted by
the common consent of the Realm in ancient times. Sir E. Coke
has shewn this by many examples in his 4 Inst. and it is
confirmed by Prynne’s Animadversions upon that Work: The
liberties of the subject, were, at one period of our history,
believed materially to depend upon the authenticity of a dis-
puted Statute, the Statute “de tallagio non concedendo,”
and, not to enumerate more instances to the same effect, at
the impeachment of Lord Macclesfield, the validity of an
Act of Parliament, which was not to be found in any Statute
book, but was contained in the Parliament rolls, gave rise to a
discussion, from its importance in sustaining the accusation against
that illustrious offender. The Committee for the inspection of the
public records, have given a particular detail of the various sources,
from which the evidence respecting the authenticity of Statutes
is derived: Sir M. Hale, in his History of the Common Law,
has imparted many valuable directions, for forming a correct
judgment in enquiries of this nature, which depend not more
upon the inspection of records, than upon general and
received tradition: and much valuable information upon this
subject, may be collected from the discussions which have
arisen, respecting the form of Statutes at particular periods ;
upon the presumption which may be made of the assent,
of one or more branches of the legislature, when it is not
expressed ; and upon the meanings, which are to be attributed
to the term “Ordinance.” (Hargr. Co. Lit. 159 6. n. 2. and
References to Prynne, ibid. Ruffhead’s Preface to the Statutes.
Elsynge on Parliaments. Whitelocke’s Parliamentary Writ. Co. Litt.
29 a. 2 Inst. 525. 644. 4 Inst. 25. Prince’s Case. 8 Rep. Reeves’s
History of the Law, Edw. III. Southampton Case, Douglas on
Elections. Heywood’s Vindication of Fox’s History, p. 92.) It
is worthy of observation, that in the reign of Henry VI. the
practice became established of making up complete Statutes in
the first instance, under the name of Bills, instead of the old
petitions which were frequently very much altered after they
had passed the Houses: this change may be considered an
important circumstance in the History of the Constitution.
A royal Proclamation was at one time supposed to possess a sort
of legislative efficacy; although there does not appear to be any
ground, for the statement of Hume, that the right of issuing
proclamations, with the effect of laws, was acknowledged by
lawyers, with a distinction restrictive of the authority of procla-
mations to the life of the Sovereign, who emitted them: and that
historian’s imputations against the Tudors, for their tyrannical
exercise of this power, have been canvassed by Mr. Brodie,
in his recent Work on the British Empire. It appears from
a treatise of Hale’s, that proclamations were frequently issued
with penalties, merely in terrorem. (Hale de Portibus Maris,

Pars.

60

Pars. Sec. ch. 9.) In the reign of Charles I, severe fines were
levied upon individuals, for disobedience to proclamations which
were grounded upon the most capricious and fanciful causes, (See
some remarkable instances of this, in D*Israeli’s Curtosities of
Literature, from a Manuscript of D’Ewes. Stratford’s Lett. and
Disp. 2. p- 142, 2 Rush, p. 28, 144, 289.) Clarendon relates,
that under the government of that King, the same individuals
in the capacity of Privy Counsellors sent forth proclamations,
and afterwards in the character of members of the Star Chamber,
in another room, punished the infraction of them. It is to the
honor of Sir E. Coke, that he asserted an opinion, notwithstanding
the opposition he experienced, on that occasion, from the disgrace-
ful demeanour of the Lord Chancellor, and Lord Privy Seal, that
the King could not change any part of the Common Law, or
create any offence by his preclamation, and that there never
was an indictment, which coneluded “contra Regiam pro-
clamationem.” It is upon the authority of Fortescue, that
his argument was principally founded, and he further mentions,
that it was resolved in the same term, at a conference held
between the Judges and the Privy Council, that the King’s
Proclamation is neither Statute Law, Common Law, or Custom,
the three parts of the Law of England; that no offence could
be created by it; and that the King has no preregative, but
that which the Law of the Land allows him. (12 Rep. Case of
Proclamations, 3 Lodge’s Illustrations 364.) It is not surprising
therefore, that an attempt in modern times to justify upon
constitutional principles, an embargo laid on the ports, in
time of peace, under the colour of a Royal Proclamation, should
have been animadverted upon, with indignant eloquence im
Parliament, or that the Legislature should have pronounced
it contrary to law (Parl. Hist. a. nv. 1766. Hargr. Pref. to Hale
de Jure Maris.) A legislative power has sometimes been assumed,
not only by the Sovereign, but alse by the Houses of Parliament.
A multitude of Treatises have been written upon the legality
of the ordinance for the Militia, which was enacted during the
great rebellion: Whitelocke details a celebrated debate upon
the subject in his memorials, and at the Treaty of Uxbridge,
he challenged Lord Clarendon, te a personal argument on the
question. A House of Commons in the Reign of Charles II,
promulgated their opinion, that a particular branch of the laws
ought not to be put in execution: upon which proceeding Burnet
observes, that it was thought to be a great invasion of the
Legislature, and was to act like dictators in the State. Our
judicial history exhibits several memorable instances, wherein
an attempt by the House of Lords, to arrogate a power, with
which the Constitution did not invest them, has met with a
resolute and successful resistance. (Case of Skinner and the
East India Company. Case of Charles Kanellis, Esq. clarmang fe

él

be Earl of Banbury. Case of Bredgman ard Holt. See Hargrave’s
Preface to Hale's Jurisdiction of the Lords ;) and Lord Holt
has left an example by his conduct, in the case of Ashby
and White, of a similar unbending spirit, toward the encroach-
ments of the Commons. The manner in which a Court of Law,
ought to treat every assumption by one of the branches of
the legislature of those powers, which appertain to them only
when they are united, was properly expressed by Lord Mans-
field, in the debate upon the address, a.p. 1770. He is re-
ported to have said, that declarations of law, made by
either House of Parliament, were always attended with bad
effects, that he constantly opposed them when he had an
opportunity, and never, m his judicial capacity, thought himself
bound to honor them with the slightest regard. (See also the
Debates in the Lords and Commons, on the Power of the Commons
fo Suspend the Execution of Law, a. D. 1784.)

CHAP. XIX.

One thing only remains to be explained, con-
cerning which you have raised some scruples,
that is, whether the Laws of England are to be
looked upon so useful, so well accommodated to
the particular Constitution of England, as the
Cwil Imperial Laws are for that of the Empire.
I remember a saying of yours, my Prince, that
comparisons are odious; and therefore I am not
very fond of making them: you will see better
reasons whereby to form your judgment, and
which of the two laws may deserve the preference,
by considering wherein they differ, than by taking
my opinion in the matter upon trust. Where they
agree, they are equally praiseworthy; but in cases
where they differ, that law which is the most ex-
cellent in its kind, after mature consideration, will
eminently appear so to be: wherefore [I shall pro-
duce some such cases, that you may weigh them
in an equal balance, and thereby know for certain,
which law is the more just and rational in its de-
cisions: and first, I shall propose some instances
of cases, which appear to me the most considerable.

63

CHAP. XX.

Wurre any have a controversy depending be-
fore a Judge, and they come to a trial upon the
matter of fact, which those who are skilled in the
laws of England, term the Issue of the Plea in
question: the issue of such plea, by the rules of
the Civil Law, is to be proved by the deposition
of witnesses, and two witnesses are held sufficient :
but, by the Laws of England, the truth of the
matter cannot appear to the Judge, but upon the
oath of twelve men of the neighbourhood, where
the fact is supposed to be done. Now, the question
is, which of those two ways of proceeding, so differ-
ent, is to be esteemed the more rational and effectual
for the discovery of the truth. That law which takes
the best and most certain way of finding out the
truth, isin that respect preferable to the other,
which is of less force and efficacy: in the ex-
amination hereof, I proceed thus*.

* In this Chapter Fortescue represents the institution of the
Jury as being the prevailing form of trial in England: and
many contemporary authorities, particularly the familiar letters
of the Paston family, bear testimony to the same fact. It may
be useful and interesting to ascertain the extent to which the
trial by Jury was adopted in the time of Fortescue, which
involves an enquiry into the history of its introduction, and of
its gradual substitution for other modes of judicial investiga-
tion.

Dr. Pettingall, who reasons upon the ground, that legal and
political institutions are the productions of civilized nations,
and the result of wisdom and cultivated nature, has sought for
the origin of this beneficial and liberal form of trial in the regula-

tions

64

tions of Grecian and Roman judicature ; and he has endeavoured
to establish, that what was at first a Roman law, and’a mark of
servitude in this country, by long usage came to be forgotten as
such, and to be considered only as an ancient prescription. (Pet-
tingal on the Use of Juries among the Greeks and Romans.) Sir
W. Jones in the Preface to his Translations of Iseeus, agrees with
Dr. Pettingal, that the Athenian Juries differed from ours in very
few particulars. A learned controversy has been sustained upon
the question, whether the trial by Jury was in use among the
Saxons. (Spelman’s Gloss, Voc. Jurata. Hickes’s Dissertatory
Epistle on Saxon Literature. Preface to Wilkins’s Leges Anglo-
Saxonice. Brady's History of England. Hallam’s Middle Ages,
ch. 8.. Reeves’s History of the English Law, Part I.c.1.) The
discussions have principally turned upon the cicumstance, that in
examining the laws and the treatises of the Saxons, together
with the history of their judicial proceedings, the expressions
which some writers suppose have reference to a Jury, are by
others construed to be intended of compurgators, of the suitors
of Court, or of certain assessors to the Judges. The first
satisfactory relation of a trial by Jury in England, is in a
cause in which Gundulph, Bishop of Rochester, was a party,.
and which was tried before the Bishop of Baieux, in the
reign of the Conqueror. It was not until the reign of Henry
the Second, that the trial by twelve men, “ duodecemvirale
judicium” generally superseded the trial by an indefinite number of
suitors of Court, which was in very common use during the Saxon
times. Reeves’s History of the Law, Henry II. Haliam’s Middle Ages,
ch. 8. Hickes’s Diss. Epist.) The celebrated expression in Magna
Charta “ judicium parium” has received different interpretations :
besides the more common one of its referring to a Jury. In the ©
opinion of some writers, it means a trial by the pares curie; and
Coke observes that “‘judicium” is used instead of “ veredictum,”
because it is intended to relate to proceedings before Lords in Par-
liament, (2 Inst. 49.)—The trial by Duel had been a very ancient
custom among the Normans, but it became gradually neglected
after the Institution of Henry the Second, mentioned by Glan-
ville, which abolished it in some cases, and afforded the option
of avoiding it in others: to obviate the necessity of having
recourse to this species of trial, in cases not within the sco
of the provision of Henry II. the grand assize were frequen y
charged with the determination of collateral questions, whic
was signified by the expression “assisa vertitur in juratam :”
and the Courts began to encumber the right of battle with
new restrictions, as the eminent advantages of ‘the trial by
Jury became more fully apparent. We meet, however, with
a judicial duel in the 19th of Henry VI. and other instances
have occured since Fortescue wrote. In judging, however; of
the sentiments of the age, from proceedings of this nature, the
qualifications

65

qualifications of a champion are not to be lost sight of, he
must have been “idoneus testis” and “liber homo.” (G/anville,
lib. ii. c. 6 and 7. Several Tracts on Judicial Combats. Hearne’s
Curious Discourses. Selden de Duello. 2 Inst. 247. 3 Inst. 157,
159, 221. Reeves’s History of the Law, Henry II. Henry III.
Edw. III. Henry VI. Among the Cottonman Manuscripts, is a
mass of Materials respecting the Law of Duels, a great portion
wn the hand-writing of the Earl of Northampton, who was in the
Commission for executing the Office of Earl Marshal.——The
trial by ordeal was very prevalent during the Saxon period.
The forms of it are particularly described by Selden in his
“Janus Anglorum.” Only one species of it occurs in the
survey of Domesday. It had gone out of use before the time
of Bracton, who makes no mention of it in his book. Its
abolition is thought to be properly referred to the beginning
of the reign of Henry III. There is a Writ of that King
preserved in Rymer, (Vol. I. p. 228.) directing the Judges
itinerant to suspend all trials by fire and water, till further
provision could be made; which is generally supposed to
have put an end to the custom: it had previously been
prohibited by the Church.—The trial by compurgators occurs in
the Saxon times, and is described by Glanville. In the opinion
of Selden it was the “legem terre,” mentioned in Magna Charta.
Traces of this form of trial still remain in some of our inferior
Courts of Law of ancient origin: it is the process which exists of
common right, in the County Court and Court Baron. (Hickes’s
Diss. Epist. Glanville, lib. i. ¢. 9. 2 Inst. 45. 143.) And the
privilege of it has been claimed in modern times in the Courts
of Westminster. (1 N. R. 297. 2 B. and C.538.) The prevalence
of the trial by compurgators, was greatly diminished when
it became settled, that wager of law was not allowable in
Exchequer process: there is a determination to this effect im
the reign of Henry V. but the question long remained open
to discussion. The actions upon the case given by the Statute
of Westminster, were, in the time of Fortescue, gradually sup-
planting the trial by wager of law, in becoming a substitute
for those forms of action in which law-wager was permitted.
These actions upon the case had been greatly expanded in the reign
of Henry V1. Assumpsit had been brought so early as in that
of Henry IV. Yet it was not until this last species of action
had become a remedy applicable to all cases of debt, on sim-
ple contract; till the action of trover was generally adopted
instead of detinue, and Chancery proceedings were resorted
to in preference to the action of account, that the trial by
Jury can be said to have completely superseded that of wager
of law. (Reeves’s History of the Law. Henry IV. Henry V.
Henry V1.)—There are some instances of a very singular and
mixed species of trial; a trial before the Lords in which there

was

E

66

was a verdict of a Jury. Such were the cases of Sir T.
Berkeley, in the reign of Edward the Third, and of Alice Piers
in that of Richard II. (Report of the Lords’ Committees re-
specting the Peerage, p.267. Reeves’s History, Edw. III. Rich. IL.)
And an enumeration of some other modes of trial of inferior
importance is to be found in the Report of the Case of the
Abbot of Strata Marcella. (9 Rep. and see respecting the Number
of Jurors in particular Cases, Hargr. Co. Litt. 155. a. a, 3.
159 a.n. 2.)

67

CUAPOXXE

By the course of Cowal Law, the party, who,
upon the trial, holds the affirmative side of the
question, is to produce his Witnesses*, whom he
is at liberty to name at his pleasure. On the
other hand, a negative is incapable of being proved ;
I mean directly, though indirectly it is otherwise.
Now, he may well be thought a person of an in-
considerable interest, and of less application, who,
from the gross of mankind and all his acquaintance,
cannot find out two, so devoid of conscience and
all faith, who, through fear, inclination, affection,
or for a bribe, will not be ready to gainsay the
truth. So that the party, to make good his cause,
is at his liberty to produce two of such a stamp;

@ Hale, in his History of the Common Law, observes, that it is
one of the excellencies of a Jury over the trial by witnesses,
that although the Jurors ought to give great regard to the
testimony of witnesses, yet they are not always bound by it. But
some trials by our law have witnesses without a Jury: as of the
life and death of the husband in Dower, and in “ cui in vita,”
so in Englesherie anciently, and in “nativo habendo.” The men-
tion of the trial “per proves” in contradistinction to the trial
“per pais” often occurs in Glanville, Bracton and the year books.
A practice appears to have been introduced, in consequence of a
clause in Magna Charta, (c. 28.) to examine the secta or suit of the
plaintiff, and in several ancient records, the result of the examina-
tion is given, and sometimes the default of the plaintiff in not
producing his secta is mentioned: this proceeding appears to have
become a mere formality in the time of Edw. III. (2 Inst. 44.
80. 662. Dyer 185.a. Selden ad Fortescue. Bracton, lib. iv. Tract. 6.
cap. 7. Fleta 137. Year Book, 17 Edw. ITI. fol. 48.6. Reeves’s
Mistory of the Law, Henry III. Edw. 11.)

E 2

68

and if the other party had ever so much mind to
object against them, or their evidence, it will
not always happen that they are or can be known
by the party, defendant in the cause, in order to
call in question their life and conversation, that,
as persons of a profligate character, they might
be cross-examined; upon which account their
evidence might be set aside: and, seeing their
evidence is in the affirmative, it is not so ‘capable
of being overthrown by circumstances, or any other
indirect proofs. Who then can live securely with
respect to his life, or estate, under such a law
which is so much in favour of any one, who has
a mind to do mischief? And, what two wicked
wretches have usually so little caution, as not to
form to themselves beforehand a perfect story of
the fact, about which they know they are to be
examined, with every minute circumstance attending
it, as if they had been true and real? “For, the
children of this world (as our Saviour says) are
in their generation wiser than the children of
light.” So, wicked Jezebel produced in judg-
ment two witnesses, sons of Belial, to impeach
Naboth, whereby he lost his life, and Ahab took
possession of his vineyard. (1 Kings xxi. 11, 17.)
Again, by the testimony of éwo elders, who were
judges, Susanna the virtuous wife of Joacim,
had been put to death as an adulteress, had not
Gop himself miraculously interposed to rescue her
by a method so sudden and inconceivable, as carried
the plain marks of inspired wisdom, and such as
was far above the natural attainments of a youth,
not yet arrived to maturity of years or judgment.
For, though by varying in their evidence, he plainly
convicted them to be false witnesses; yet, who but
Gop alone, could have foreseen that they would
thus have varied in their evidence? Since there
was no law which obliged them to be so exact
in every little circumstance, as to remember under

69

what kind of tree the fact alleged was committed.
For, the witnesses of any criminal action are not
supposed to take notice of, every bush, or other
circumstance of place, which seemed to import
nothing, either as to the detecting or aggravating
of the crime. But, when those wicked judges,
in such their wilful deposition, varied concerning
the species of the trees, their own words demon-
strated that they had prevaricated and deviated from
the truth, whereby they deservedly incurred the
sentence of the law of Moses, according to which,
they did unto them in such sort as they “maliciously
intended to do to their neighbour: and they put
them to death.

You have, most gracious Prince! within your own
memory, a remarkable instance, how much Justice
may be perverted, in the case of Mr. John Fringe :
who, after he had been in priests’ orders for three
years, was, by his own procurement, and the deposi-
tion of two false witnesses, (who swore that he had
been formerly contracted to a certain young girl)
compelled to quit his orders and to marry her: after
cohabiting with her fourteen years, and having had
by her seven children, being at last convicted of high
treason against your highness, in the very article “of
death, and in the hearing of a multitude of people,
he declared that those witnesses had been suborned
by him, and that what they deposed was utterly false
and groundless. Many like instances you may have
heard of, where justice has been perverted by means
of false witnesses; even under judges of the greatest
integrity, as is notorious to those, who converse with
and know mankind. ‘This sort of wickedness, alas t
is but too frequently committed.

70

CHAP. XXII.

For this reason, the Laws of France, in capital
cases, do not think it enough to convict the accused
by evidence, lest the innocent should thereby be
condemned ; but they choose rather to put the accused
themselves to the Rack, till they confess their
guilt, than rely entirely on the deposition of wit-
nesses, who, very often, from unreasonable prejudice
and passion ;- sometimes, at the instigation of wicked
men, are suborned, and so become guilty of perjury.
By which over cautious, and inhuman stretch of
policy, the suspected, as well as the really guilty,
are, in that kingdom, tortured so many ways, as
is too tedious and bad for description. Some are
extended on the rack, till their very sinews crack,
and the veins gush out in streams of blood: others
have weights hung to their feet, till their limbs are
almost torn asunder, and the whole body dislocated :
some have their mouths gagged to such a wideness,
for a long time, whereat such quantities of water
are poured in, that their bellies swell to a prodigious
degree, and then being pierced with a faucet, spigot,
or other instrument for the purpose, the water spouts
out in great abundance, like a whale (if one may
use the comparison) which, together with his prey,
having taken in vast quantities of sea-water returns
it up again in spouts, to a very great height. To
describe the inhumanity of such exquisite tortures
affects me with too real a concern, and the varieties
of them are not to be recounted in a large volume.
The Civil Laws themselves, where there is a want
of evidence in criminal cases, have recourse to the
like methods of torture for sifting out the truth.

71

Most other kingdoms do the same: now, what man
is there so stout or resolute, who has once gone
through this horrid trial by torture, be he never so
innocent, who will not rather confess himself guilty
of all kinds of wickedness, than undergo the like
tortures a second time? Who would not rather die
once, since death would put an end to all his fears,
than to be killed so many times, and suffer so many
hellish tortures, more terrible than death itself? Do
you not remember, my Prince, a criminal, who,
when upon the rack, impeached (of treason) a
certain noble knight, a man of worth and loyalty,
and declared that they were both concerned together
in the same conspiracy: and, being taken down
from the rack, he still persisted in the accusation,
lest he should again be put to the question. Never-
theless, being so much hurt and reduced by the
severity of the punishment, that he was brought almost
to the point of death, after he had the Viaticum and
Sacraments administered to him, he then confessed,
and took a very solemn oath upon it, by the body
of Christ; and as he was now, as he imagined,
just going to expire, he affirmed that the said
worthy knight was innocent and clear of every
thing he had laid to his charge: he added, that
the ¢ortures he was put to were so intolerable, that,
rather than suffer them over again, he would accuse
the same person of the same crimes*; nay, his own
father: though, when he said this, he was in the
bitterness of death, when all hopes of recovery were
over. Neither did he at last escape that ignominious
death, for he was hanged; and, at the time and
place of his execution, he acquitted the said knight
of the crimes wherewith he had, not long before,
charged him. Such confessions as these, alas! a great
many others of those poor wretches make, not led

* The reader will be struck with the similarity between this
relation and the language of Felton, when he was threatened.
with the rack. (Whitelock’s: Memorials, p. 11.)

%

72

by a regard to truth, but compelled to it, by the
-exquisiteness of their torments: now, what certainty
can there arise from such extorted confessions; but,
suppose a person falsely accused should have so
much courage, so much sense of a life after this,
as, amidst the terrors of this fiery trial (like the
three young Jews of old, Dan. iii.) neither to dis-
honour God, nor lie to the damnation. of his soul,
so that the judge should hereupon pronounce him
innocent: does he not with the same breath pro-
nounce himself guilty of all that cruel punishment,
which he inflicted upon such person undeservedly ?
And how inhuman must that law be, which does
its utmost to condemn the innocent, and convict
the judge of cruelty? A practice so inhuman,
deserves not indeed to be called a law, but the
high road to hell. O judge! in what school of
humanity did you learn this custom of being present
and assisting, while the accused wretch is upon the
rack. The execution of the sentence of the law
upon criminals is a task fit only for Little vallains
to perform, picked out from amongst the refuse of
mankind, who are thereby rendered infamous for
ever after, and unfit to act, or appear, in any
Court of Justice. Gop Almighty does not execute
his judgments on the damned by the ministration
of angels, but of devils; in purgatory, they are
not good spirits, which torment and exercise souls,
though predestinated to glory, but evi spirits. In this
world, the wicked, by the permission of Gop, inflict
the evil of punishment on sinners. For, when Gop
said, (1 King's xxii. 20.) ‘* Who shall persuade Ahab
that he may go up and fall at Ramoth Gilead,” it was
an evil spirit which came forth and said, “I will be
a lying spirit in the mouth of all his prophets :”
though Gop, for just reasons, had determined to
suffer Ahab to be persuaded, and deceived by a lie,
yet was it by no means becoming a good spirit to be
employed on such an errand. Perhaps, the judge

13

will say, I have done nothing of myself in inflicting
these tortures, which are not by way of punishment,
but trial; but, how does it differ, whether he does
it himself, while he is present on the bench, and,
with reiterated commands, aggravates the nature
of the crime, and encourages the officer in the
execution of his office. It is only the master of
the ship who brings her into port, though, in
pursuance of his orders, others ply the steerage:
for my own part, I see not how it is possible for the
wound, which such a judge must give his own
conscience, ever to close up, or be healed ; as long,
at least, as his memory serves him to reflect upon
the bitter tortures so unjustly and inhumanly in-
flicted on the innocent”.

® The passages in the text, will be read with interest, as
exhibiting a very early protest on the behalf of injured humanity
against the Law of Torture. It must, however, be observed,
that the imperial Code, however deserving of reprobation, for
countenancing the application of torture under any circum-
stances, contained many restrictions on the use of it; in parti-
cular, to constitute a sufficient cause for condemnation to the
rack, there must have been one witness against the prisoner,
accompanied with pregnant presumption of guilt, or an extra-
judicial confession proved by two witnesses. On the other
hand, the annals of our own Country, have been deeply stained
by the adoption of this inhuman practice. (See a Collection of
Instances, in which Torture has been used in England, from the |
early mention of it, in the Proceedings against the Templars,
tem. Edw. II. till the Declaration of the Judges, on the Occasion
of Felton’s Trial, Barrington’s Observations on West. I. and
27 Hen. VIII, Rose's Observations on Fox’s History, and
Heywood’s Vindication of that Work, Grey's Hudibras, Part II.
Canto ii. 1. 335, Ellis’s Original Letters, Vol. Il. p. 261. Brodie
on the British Empire, Vol. I. p. 236. Vol. II. p. 207, 209. Retro-
7 eipthis Review, No. xviii. from the Manuscript of Sir 8. Romilly,
bservations on the late Continuance of Torture in Great Britain,
Archeol. Antiq. Soc. Vol. X. For a Defence of the use of Torture,
see “the Law of Laws” by Sir R. Wiseman, published a. v. 1664.
For a description of the Rack, see Strutt’s Antig. Vol. III. p. 46.)
In perusing the horrible catalogue of examples of the use of
torture in Great Britain, one is shocked to find, subscribed to
warrants directing its infliction, the names of individuals, con-
spicuous

74

spicuous for singular zeal either in the prosecution of philoso-
phical truth, or the vindication of political liberty. This disgrace
is attached to the characters of Lord Bacon, Sir E. Coke, and
William the Third. (Vol. X. Archwol. Antig. Soc. Rose, p. 179.
1 Scotts Somer’s Tracts, 211.) The last of these eminent persons
was indeed a foreigner, and did not infringe the law of the
country in which he commanded torture to be applied, for
until the time of the Union, it was permitted by the Law of
Scotland. (Sir G. Mackenzie's Criminal Law, p. 543. Stair’s
Institutes, 699.) and Sir E. Coke has left to posterity, in his Insti-
tutes, an indignant censure. of the practice ; which he affirms to
be repugnant to the letter and spirit of Magna Charta, and to
be unsupported by any one legal authority or judicial record.
It is observable, that in this part of his works, he pays a just
tribute of praise to the opinion of Fortescue, which he adopts
as the foundation of his own. It may not be too much to
say, that the sentiments which are expressed in this Chapter,
are not only honorable to the writer of them, but have had
a practical and highly beneficial influence on the jurisprudence
of the country. Montesquieu has descanted upon the example
of England, as being a nation, among whom torture had been
abolished, and no inconvenience had resulted from the want of
it: Sir Thomas Smith, in his Republic, written in the reign of
Edward the Sixth, takes pains to prove that torture is repugnant
to the character of the people in this country. The adoption
of it on the continent, is, in a great measure, owing to the sanction
given to it in a code of laws composed by Charles V, called the
Carolina. It was abolished by the Code Napoleon: but there ex-
ists in France a species of mental torture, called Le Secret, which
has been depictured by the writers of that nation, in the most
frightful colours. (Observations sur Plusieurs points Importans
de notre Législation Criminelle par M. Dupin. De la Justice
Criminelle en France par M. Beranger.) It will always be
recollected, that many foreign writers, whose views have
soared above the confined principles of the Governments
under which they lived, have followed in the same wise
and liberal track, in which they were preceded by Fortes-
cue. Among these the name of Beccaria, connected with
every thing that is humane in the administration of justice,
stands conspicuous. The observations of Montesquieu on the
subject are remarkable. “‘Tant d’habiles gens et de beaux genies
ont écrit contre cette pratique que se n’ose parler aprés eux.
Jallois dire qu’elle pourroit convenir dans les gouvernements
despotiques ou tout ce qui inspire la crainte entre plus dans les
ressorts du gouvernement; J’allois dire que les esclaves chez les
Grecs et chez les Romains—mais j’entends la voix de la nature
qui crie contre moi.” Voltaire has expressed his sentiments upon
this practice in a strain of eloquence dictated by the most en-

lightened

+

75

lightened philosophy, and the tenderest feelings of the heart.
“ Ici un spectacle effrayant se presente tout-a-coup a mes yeux.
le juge se lasse d’interroger par la parole, il veut interroger par
les supplices : impatient dans ses recherches et peut-étre irrité de
leur inutilité, on apporte des torches, des leviers, et tous ces in-
strumens inyéntés pour la doleur. Un bourreau vient se méler
aux fonctions de la Magistrature, et terminer par la violence un
interrogataire commencé par la liberté—Douce philosophie, toi
qui ne cherche la verité qu’avec l’attention et la patience, t’at-
tendais-tu que dans ton siécle on employat de tels instrumens
pour la decouvrir”. (L’ Homme aux quarante ecus).

76

CHAP. XXIII.

Fourruer, if a right accrues to a man to plead
upon a trial, which arises from a contract, a fact
done, a title of inheritance, or the like: in these
cases, if either there were no witnesses at the first ;
or, if they that were, are dead, the plaintzff will be
obliged to drop his action, unless he can prove his
right by such strong circumstantial proofs, as are
not to be evaded, which seldom happens. Where
lordships, and other possessions are in dispute; and
in all other actions which fall under the jurisdiction
of the Civil Law, the actions of the plaintiffs are
very often rendered incapable of being brought to
an issue for want of evidence, so that scarce one
half of them can attain the end proposed: under
what denomination then is that law to be ranged,
which, where parties are injured, is so defective in
making satisfaction. _ 1 question whether such a
Jaw can be called just, if that be true which this
very law informs us, (viz.) ‘ That justice gives to
every one their due;” which such a law as this
most certainly does not*.

* The preamble to the 27th Henry VIII. enumerates the
inconveniences experienced in trials in the Admiralty Court,
conducted according to the rules of the Civil Law, and may
illustrate the observations of Fortescue, in the present and some
preceding Chapters. ‘Where pirates upon the sea many times
escaped unpunished, because the trial of their offences hath here-
tofore been ordered before the Admiral after the course of the
Civil Laws, the nature whereof is, that before any judgment of
death can be given against the offenders, either they must pals

confess

au

confess their offence (which they will never do without torture
or pains) or else their offences be so plainly and directly proved
by witnesses indifferent, such as saw their offences committed,
which cannot be gotten but by chance at few times, because
such offenders commit their offences upon the sea, and at many
times murder and kill such persons being in the ship or boat
where they commit their offences, which should bear witness
against them in that behalf, and also such as bear witness be
commonly mariners and shipmen, which, for the most part,
cannot be gotten, nor had always ready to testify such offences
without long protraction of time, and great costs and charges,
&e.”

CHAP. XXIV.

Ir being thus explained how the Civil Laws
direct the judge concerning the truth of a fact,
which is brought on to trial, it remains to be ex-
plained how the Laws of England boult out the
truth of a fact, when it comes in issue. The
manner of proceeding in both laws being laid,
and compared together, their qualities will appear
the more eminently, according to that saying. of
the philosopher, *‘ Opposites placed together give
light to one another.” But here, by way of in-
troduction, and to borrow the rule or method
used by orators, it may be necessary to premise
some things, a right understanding whereof will
help to let us into a more clear and distinct un-
derstanding of what follows: I proceed thus:
England is divided into Counties, as France is
into Bailliwicks, or Provinces, so that there is no
place in England, which is not within the body
of some County:* counties are divided into
Hundreds, which in some parts of England are

« Among Hearne’s Discourses, are several curious Tracts relative
to the antiquity of Counties, and the principles upon which the
division of them was made; and several solutions are there offered,
to account for those strips of counties lying within the limits
of one Shire, but which are parcel of another : the division of
Counties is also treated of by Camden, in the Introduction to his
Britannia, and many interesting facts respecting the Counties
of England, are collected in the Dissertation upon Domesday
Book, which has been published by commissioners for the public
Records. (See further, respecting the ‘‘ quillets” of Counties, Peck’s
Notes on Shakespeare's Plays, in his Memoirs of Milton, p. 230,
and on the antiquated Counties, the distinction of Counties and
Shires, and the Earldom of Berkshire, Fuller’s Worthies, c. 19.)

79

called Wapentakes’, and Hundreds again, are
subdivided into Vills*, under which appellation

» In the laws ascribed to Edward the Confessor, is the follow-
ing passage: “Everwickshire, Nicholshyre, Nottinghamshire,
Leicestershire, Northamptonshire usque ad Watlingstrete et octo
millia ultra sub lege Anglorum sunt, et quod Angli vocant
hundredum supradicti comitatus vocant wapentachium.” It
appears from an entry in Domesday Book, under the head of
Nottinghamshire, that the Wapentake paid the third penny in
the same manner as the Hundred. The original meaning sig-
nified by the division of hundreds has been disputed by An-
tiquarians of great celebrity : a hundred families, a hundred pro-
prietors, a hundred hydes, a hundred villages, have all beenassigned
as the foundation of the name. Tacitus speaks of an institution
among the ancient Germans, which is supposed by some writers
to have been introduced by the Saxons into this Country, “ Cen-
teni ex singulis pagis sunt, idque ipsum inter suos vocantur.”
And another passage from the same author has been thought to
explain the meaning of the term Wapentake, “ Considunt armati :
si displicuit sententia, fremitu aspernantur: sin placuit, frameas
concutiunt.” But the signification of this word, as well as that
of “ Hundred” has given rise to a variety of opinions. Hallam
conjectures that the Wapentakes must have been planned upon
a different system from the Hundreds, for he thinks that the
circumstance of the greater density of population existing .
in the south of England in early times, is not sufficient to ac-
count for the inequality observable in the number of Hundreds
for the same extent of Country. The Wapentakes appear to
have undergone a great alteration in their names since the period
when Domesday Book was compiled. (Diss. on Domesday Book,
Report of the Commissioners for Public Records. Hallam’s
Middle Ages, Vol. II. p. 139. and see ibid. respecting the Juris-
diction of the- Tithing-man. Spelman’s Gloss. Voc. Wapentachium
and Hundredus. 2 Inst. 99.)

° Fortescue’s description of Vills, is cited in the first Institute :
but Coke’s definition is more particular than that in the text: he
says that a Vill is “ex pluribus mansionibus vicinata, ” and it must
have had a church and celebration of divine service, sacraments and
burials. Blackstone observes, that the latter distinction is more
of an ecclesiastical nature, and he adds, that a Vill formerly con-
tained ten freeholders, and is synonymous with a tithing. It
has been considered that the word “pluribus” in Coke’s de-
finition, points to a greater number than two: but the modern
notion of a Vill in the Courts of Law, seems to depend upon
the circumstance of the place having hada constable. In the
Exchequer is preserved a register of the names of all the ee

an

80

Cittes and Boroughs‘ are included. The boun-
daries of those Vills are not ascertained by walls,
buildings or streets; but, by a compass of fields,
large districts of land, some hamlets*, and divers
other limits; as rivers, water-courses, wood-lands,.
and wastes of common, which there is now no
occasion to describe by their particular names ;
because there is scarce any place in England, but
what is within the limits of some Vill, though there
be certain privileged places within Vills, which
are not reputed as parts or parcels of such Vills;
farther, there is in evety county a certain officer,
called the King’s Sheriff, who, amongst other duties
of his office, executes within his county all man-
dates and judgments of the King’s Courts of Justice :
he is an annual officer; and, it is not lawful for
him, after the expiration of his year, to continue

and towns of England, collected in the reign of Edward II.
and a similar catalogue entitled Villare Anglicum, is published
among Spelman’s Works. (Diss. on D. B. Co. Litt. 115 b.
Spelman’s Gloss. v. Villa. Tract upon Towns by Sir R. Cotton
in Hearne’s Discourses. R.v. Showler, 3 Burr. Rep. R. v. Hor-
ton, 1 T. R. and for the early Progress of Towns in England,
Hallam’s Middle Ages, Vol. Il. p. 224. et seq. Brodie’s British
Empire, Introduction.)

« A variety of curious particulars respecting the Cities and
Boroughs existing at the time of the conquest, are contained in
Domesday Book, and are collected in the dissertation upon that
work, recently published by the commissioners of public records.
The account which is given of Cities and Boroughs by Coke in
his Institutes, and in which he is generally followed by Black-
stone, appears liable to many well founded objections. (Hargr.
Co. Litt. 108 b. n. 3 and 4. 109 b. n. 2 and 3. Brady on a
Madox’s Firma Burgi. Whitelock on the Parliamentary Writ.
Essay on the Antiquity of Cities in Hearne’s Cur. Disc.)

¢ Spelman in his Glossary (Voc. Hamel) after mentioning the
signification of “ham” to be “villa” and that of “let” “membrum,”
cites the following passage from a Statute of Edw. I. which ex-
plains the division of the Country into Hamlets. “Que ils
ordeinent et facent venir devant eux de chescune ville entier
8 homes, et de demie ville 6 homes, et de hamlette 4 homes
des pluis sages et pluis loyalz.” Spelman defines a Hamlet
to be a place “ Ubi quinque capitales plegii non deprehensi
sunt.”

rd

to act in his said office, neither shall he be taken
in again to execute the said office within two years
thence next ensuing. The manner of his election
is thus: Every year, on the morrow of All-Souls,
there meet in the King’s Court of Exchequer all
the King’s Counsellors, as well Lords spiritual
and temporal, as all other the King’s Justices, all
the Barons of the Exchequer, the Master of the
Rolls, and certain other officers, when all of
them, by common consent, nominate three of every
county Knights or Esquires, persons of distinction,
and such as they esteem fittest qualified to bear
the office of Sheriff of that county, for the year
ensuing: the king only makes choice of one out
of the three so nominated and returned. Who, in
virtue of the King’s Letters Patent, is constituted
High Sheriff of that county, for which he is so
chosen, for the year then next ensuing. But,
before he can take upon him to act in consequence
of the said Letters Patent, he shall swear upon
the holy Evangelists, amongst other clauses, well,
faithfully and indifferently to execute and do his
duty for that year, and that he will not receive
any thing, under pretext or color of his said
office, from any one, other than and except from
the King’s Majesty’. This being premised, let us
now proceed to those other matters which fall in
with our present inquiry ®.

-* This is provided for by the Statute of West. 2. c. 26. which
Coke observes was made in affirmance of a fundamental maxim
of the Common Law, (2 Inst. 210. See Concerning the Sheriff’s
Ox. West. 2. c. 25.)

® Selden, in his “ Titles of Honour,” assigns a different mean-
ing to the terms Comes: and Vicecomes, from those which
usually occur in the glossarists, and which are authorized by
the ‘‘ Dialogue of the Exchequer.” Selden derives Comes, not
from the Earl participating. in the profits of the County (a
derivation which he acknowleges to be recognized in many
ancient patents conferring the title,) but from his being the
companion

F

82

companion and Counsellor of the Prince; which agrees with
Bracton’s view of the subject. So he conceives the term
Vicecomes did not denote any subordination to the Comes,
but meant that the King had appointed a person who might
“supplere vicem Comitis” in those Counties where he had
no. Comes ; (Selden’s Titles of Honor, Part II: Madox’s Notes
on the Dialogue of the Exchequer, p. 81.) The nature of -
the Sheriff’s duties, in the early period of our history, is
minutely detailed in Madox’s Treatise upon the Exchequer.
A Sheriff in former times had often more Counties than one
under his charge, in the same manner as the Sheriff of Cam-
bridge is, at the present day, also Sheriff of Huntingdon. Upon
this circumstance was founded the argument in the case of
Wilkes’s outlawry, that an averment of the proceedings in
outlawry, having taken place at a Court holden by the
Sheriff of Middlesex within the County of Middlesex, was
compatible with the possible fact, that the Sheriff of Middlesex
might also be the Sheriff of some other County, and might
have been holding the County Court, for that County, within
Middlesex, which the law allowed, and that consequently the
proceedings might not have taken place at a County Court
for Middlesex: but as two persons never were Sheriff of any
other County than Middlesex, the argument was not main-
tainable. The question does not appear free from doubt,
whether before the Statutes, which relate to the office of Sheriff,
it was in the appointment of the freeholders of the County or
of the Crown. (2 Inst. 558. Madox’s Notes on the Dialogue
of the Exchequer, p. 33. Spelman’s Gloss. Voc. Vicecomes.)
Anciently the situation of the Sheriff must have been one of
the highest responsibility ; the collection of the royal revenue
for the County usually appertained to that. officer. (Mado2’s
Exchequer, p. 223. Barrington’s Observations on Art. Super
Chartus, and Stat. de Marlb.) his interference was required
on the occasion of distresses of various kinds, which appear
to have been very numerous at an early period. (Barrington’s
Observations on Magna Charta, c. 14. and Stat. de Scacc. 51
Hen. ITI.) and at a time when the forcible abduction or de-
tention of wards, was of frequent occurrence, and individuals
had often recourse to violent methods for the assertion of
their real or supposed rights, the authority and summary
powers of the Sheriff were often called into use. (Paston
Letters, Vol. III. Lett. 22, and many others in the same Collection.)
But, the most important occasions upon which the Sheriff is
invested with an authority, materially affecting the interests of
the community, is, in the dischage of his duties as the returning
officer at elections for Members of Parliament, and in the ap-
pointment of proper persons to perform the office of Jurymen.
The partiality of Sheriffs in executing Writs of Parliament,

became

83

became the subject of complaint at a very early period. (Stat.
5 Rich. IT. Part 11. ¢.4. 7 Henry IV.c.15. 1 Henry V. c. 1.
8 Henry VI. c. 7. 23 Henry VI. c. 14. Henry's History,
Book V. c. 3. Paston Letters, Vol. III. Lett. 109, from the
Under Sheriff, saying, “I purpose, as I will answer God, to return
the due Election, nevertheless I have a Master;” also Vol. III.
Letter 36. Vol. IV. Letter 6 and 8.) And although a King
of this nation once adopted the iniquitous measure of appoint-
ing to the office of Sheriff, the great champions of the liberties
of the Country, in order to prevent them from expressing in
Parliament those sentiments and opinions to which no satisfac-
tory answer could be given in a Constitutional way; yet on
other occasions, the Crown has frequently availed itself of the
agency of a presiding officer of its own nomination, in order
to exercise an undue influence over the election of Members
of Parliament. (See the Articles against Rich. II. Howell’s St. Tr,
Holinshed, Hayward. Strype’s, Eccl. Mem. Vol. II. p. 394. Vol. III.
p- 155. Strype’s Annals, Vol. I. p. 32. Reresby’s Memorrs, p. 80.
For the circumstances attending Sir E. Coke’s Appointment, and the
Law relatiwe to the Case, 1 Rush. p.197. Strafford’s Lett. and
Disp. p. 29. Douglas on Elections, Southampton Case, Abing-
don Case.) The safeguard which in the present day is opposed
to the partiality of. the Sheriff, may be considered as one of the
fruits of the Revolution. (Stat.10 and11 William III. Case of
Ashby and White, Hargr. St. Tr. and see the Debate on the West-
minster Scrutiny. Parl. Deb. a. dD. 1784.)—The corruption of
Sheriffs in composing the panels of Jurymen, was a serious
impediment to the administration of Justice in early times.
We read of its being common to charge, in an attorney’s bill,
pro amicitia Vicecomitis. It appears from the Paston Letters,
that it was not unusual to procure a King’s letter to obtain
the Sheriff’s favor on an approaching trial, the price of which
was generally a Noble. The misconduct of Sheriffs in this
branch of their duty, is recited as one of the reasons for establish-
ing or remodelling the Star Chamber, in the Act of Henry VII.
which relates to that tribunal. ( Camera Stellata by Mr. Tate
an Hearne’s Disc. Hume’s Append. to the Reign of Henry VII.
Paston Letters, Vol. III. Letter 76, and several others in the same
Collection. St. 18 Hen. VI. c. 14. for recovering Bribes from the
Sheriff, given him to return Juries. Barrington’s Observations on
11 Henry VII.) But it was in the reign of Charles II. that
the michief which may arise from the authority of the Sheriff,
in matters of judicature, when it is perverted for the purpose
of abetting a wicked exercise of the prerogative, was most
strikingly evinced. (Harris’s Life of Charles II, Burnet,
Vol. I. p. 536.) A desire of securing the obedience of the
Sheriffs of London, in order to put a stop to the “reign of
Ignoramus” is avowed by North in his Examen, to have been

the

¥ 2

84

the motive for procuring the forfeiture of the City’s Charter :
end the same Author, in his attempt, in another work, to pa-
negyrize his relation, Lord Keeper Guilford, for his conduct
on the occasion of the election of the London Sheriffs, has
handed down his name to all posterity, as a paragon of servility,
dishonesty and injustice. When it is considered by what persons
the Juries of the City of London were returned in the latter
years of Charles II, the authority of their verdicts is annihilated :
and we must acknowledge the truth of the comparison made by
a great Statesman, between the conduct of Charles, and that of
Tiberius, who seldom put his victims to death without a decree
of the Senate.

85

CHAP. XXV.

Wuensoever the parties, contending in the
King’s Courts, are come to the issue of the Plea,
upon the matter of fact, the justices forthwith, by
virtue of the King’s Writ, write to the Sheriff of
the County, where the fact is supposed to be, that
he would cause to come before them, at a certain
day, by them appointed, twelve good and lawful
men of the neighbourhood, where the fact is sup-
posed, who stand in no relation to either of the
parties who are at issue, in order to enquire
and know upon their oaths, if the fact be so as
one of the parties alleges, or whether it be as
the other contends it, with him. At which day
the Sheriff shall make return of the said Writ
before the same Justices, with a panel of the names
of them whom he had summoned for that purpose.
In case they appear, either party may challenge
the array, and allege, that the Sheriff hath acted
therein partially, and in favour of the other party,
(viz.) by summoning such as are too much parties
in the cause and not indifferent; which exception,
if it be found to be true upon the oath of two
men of the same panel, pitched on by the Justices,
the panel shall immediately be quashed, and then
the Justices shall write to the Coroners of the
same County, to make a new panel; in case that
likewise should be excepted ‘against, and be made
appear to be corrupt and vicious, this panel shall
also be quashed. ‘Then the Justices shall choose
two of the clerks in Court, or others of the same

86

County, who, sitting in the court, shall upon
their oaths, make an indifferent panel, which shall
be excepted to by neither of the parties; but,
being so wnpanelled, and appearing in Court,
either party may except against any particular
person; as he may at all times, and in all cases,
by alledging that the person so zmpanelled is of
kin, either by blood, or affinity to the other party;
or in some such particular interest, as he cannot
be deemed an indifferent person to pass between
the parties: of which sort of exceptions there is
so much variety, as is impossible to shew in a small
compass: if any one of the exceptions be made
appear to the Court to be true:and reasonable,
then he against whom the exception is taken, shall
not be sworn, but his name shall be struck out
of the panel: in like manner shall be done with
all the rest of the panel, until twelve be sworn:
so indifferent, as to the event of the cause, that
neither of the parties can have reasonable matter
of challenge against them: out of these twelve, four,
at the least, shall be Hundredors, dwelling in the
Hundred, where the Vill is situate, in which the
fact disputed is supposed to be: and every one of
the Jury shall have lands, or revenues, for the term of
his life, of the yearly value at least of forty shilangs.
This method is observed in all actions and causes,
criminal, real or personal ; except where, in personal
actions the damages, or thing in demand, shall
not exceed forty marks English money: because,
in such like actions of small value, it is not neces-
sary, nor required, that the Jurors should be able
to expend so much; but they are required to have
lands, or revenues, to a competent value, at the
discretion of the Justices; otherwise they shall
not be accepted; lest, by reason of their meanness
and poverty, they may be liable to be easily bribed,
or suborned: and in case, after all exceptions taken,
so many be struck out of the panel, that there does

87

not remain a sufficient number to make up the
Jury, then it shall be given in charge to the Sheriff,
by virtue of the King’s Writ, that he add more
Jurors; which is usually and often done, that the
enquiry of the truth upon the issue in question
may not remain undecided, for want of Jurors.
This is the form how Jurors, who enquire into the
truth, ought to be returned, chosen and sworn in
the King’s Courts of Justice: it remains to enquire
and explain how they ought to be charged and
informed as to their declaration of the truth of the
issue before them’.

* In this Chapter, Fortescue directs the attention of the
Prince, to some of the leading features of the trial by Jury:
it will be noticed, that several of the principles, upon which
that institution was originally founded, have undergone essential
alterations. The qualification of neighbourhood, has been
materially affected by Statute: and the private knowledge of
Jurors, is not at present deemed a proper cause for their
decision; whereas so late as the time of Charles II, it was
considered by the Courts, that the greater and better part of
the evidence, which should sway the minds of the Jury,
might be unknown to the Judge: an infraction of the right
of being tried by Peers of their vicinage, was alleged by the
American States, as one of the grounds of their quarrel with
Great Britain. (Memoirs of Franklin 1. p. 462. Per C. J. Vaughan,
Case of Bushell’s Habeas Corpus; and see C. J. Pemberton’s
Charge to Lord Shaftesbury’s Grand Jury. Concerning the ,
Period when the Principle came to be changed, 3 Bl. Comm. 374.
Styles 233. 1 Sid 133.) The qualification of freehold has been
greatly modified by the Legislature: it was, however, insisted
upon as indispensable in trials for High Treason, by a clause
in the Bill of Rights, a circumstance which was owing to the
celebrated discussion upon the subject in the case of Lord
Russel. In High Treason, likewise, the subject is furnished
by Statutes passed since the Revolution, with an advantage
in the challenging of the Jurors, which he did not possess
_at Common Law, by supplying him with the names, pro-
fessions and abodes of the Jurors, at a specified period before
the trial. Foster expresses a doubt, whether, by the Law, as
it is now settled, a prisoner accused of treason, is not invested
with privileges too great for the purposes of equal justice.
But, as far as the power of challenging is concerned, the prisoner
will be thought to be entitled to every facility, when it is

considered

88

considered, that, by the rules which the Courts have established,
he cannot defer making his challenge in any instance, for the
purpose of ascertaining whether the Counsel for the Crown
intend to offer theirs; that no cause can be required to be
shewn on the part of the prosecution, until all the panel has
been gone through; and that the great size of the panels,
which has been allowed in trials for High Treason, combined
with these two circumstances, operates to invest the Crown
with the power of arbitrarily rejecting Jurors. (See the Cases
of O’Coigly, and Horne Took, for Treason. Howell's St. Tr.
and References, ibid.) A very important alteration has taken
place in the ancient law respecting Juries, by the practice of
striking Special Juries in cases of misdemeanor. The Statute of
3 George II, recognizes this usage as being then long esta-
blished. The reader will find the objections, which have been
made to the use of Special Juries in State prosecutions, urged with
great ability by the defendant, in the case of the King v. Horne
11th St. Tr. and in a letter addressed by Lord Lyttleton to
a Member of Parliament, which is published in his works.
Previous to the Statute of William, the trial of a Peer in
the High Steward’s Court, afforded opportunities for the most
flagrant injustice; since the selection of the Lords who were
to try the prisoner, was virtually the act of the Crown, and
there existed no right of challenge. A ‘single historical fact,
will illustrate the’ danger to which Peers were liable to be
exposed by such an unfair mode of procedure. At the trial of
the Protector Somerset, ‘Northumberland, Northampton, and
Pembroke, sat among his Judges.

89

CHAP. XXVI.

Twetve good and true men being sworn, as
in the manner above related, legally qualified,
that is, having over and besides their moveables,
possessions in land sufficient (as was said) where-
with to maintain their rank and station; neither
suspected by, nor at variance with either of the
parties; all of the neighbourhood; there shall
be read to them in English, by the Court, the
Record and nature of the plea, at length, which
is depending between the parties; and the Issue
thereupon shall be plainly laid before them, con-
cerning the truth of which, those who are so
sworn, are to certify the Court: which done, each
of the parties, by themselves or their Counsel,
in presence of the Court, shall declare and lay
open to the Jury all and singular the matters and
evidences, whereby they think they may be able
to inform the Court concerning the truth of the
point im question; after which each of the parties
has a liberty to produce before the Court all such
witnesses as they please, or can get to appear
on their behalf; who being charged upon their
oaths, shall give in evidence all that they know
touching the truth of the fact, concerning which
the parties are at zsswe: and, if necessity so require,
the witnesses may be heard and examined apart’,
till they shall have deposed all that they have to

See the Cases of Cook and of Vaughan, tem. Will. IIT.
Hargr. St. Tr.

90

give in evidence, so that what the one has declared
shall not inform or mduce another witness of the
same side, to give his evidence in the same words,
or to the very same effect. The whole of the
evidence being gone through, the Jurors shall
confer together, at their pleasure, as they shall think
most convenient, upon the truth of the issue before
them; with as much deliberation and leisure as
they can well desire, being all the while in the
keeping of an officer of the Court, in a place assigned
them for that purpose, lest any one should attempt
by indirect methods to influence them as to their
opinion, which they are to give in to the Court.
Lastly, they are to return into Court and certify
the Justices upon the truth of the issue so joined,
in the presence of the parties (if they please to be
present) particularly the person who is plaintiff i in
the cause; what the Jurors shall so certify in the
Laws of England, is called the Verdict. In pur-
suance of which verdict, the Justices shall render
and form their judgment. Notwithstanding, if the
party, against whom such verdict is obtained, com-
plain that he is thereby aggrieved, he may sue out
a writ of Attant, both against the Jury, and also
against the party who obtained it; in virtue of
which, if it be found upon the oath of twenty-four
men (returned in manner before observed, chosen
and sworn in due form of law, who ought to have
much better estates than those who were first returned
and sworn) that those, who were of the original
panel and sworn to try the faci, have given a verdict,
contrary to evidence, and their oath; every one of
the first Jury shall be committed to the publick gaol,
their goods shall be confiscated, their possessions seized
into the King’s hands, their habitations and houses
shall be pulled down, their woodlands shall be felled,
their meadows shall be plowed up, and they them-
selves shall ever thenceforward be esteemed, in the
eye of the Law, infamous, and in no case whatso-

ol

ever, are they to be admitted to give evidence in
any Court of Record: the party, who suffered in
the former trial, shall be restored to every thing
they gave against him, through occasion of such
their false verdict: and, who then (though he should
have no regard to conscience or honesty) being so
charged upon his oath, would not declare the truth
from the bare apprehensions and shame of so heavy
a punishment, and the very great infamy which
attends a contrary behaviour! and, if perhaps, one
or more amongst them should be so unthinking or
daring, as to prostitute their character, yet the rest
of the Jurors, probably, will set a better value on
their reputations than suffer either their good name
or possessions to be destroyed and seized in such
a manner: now, is not this method of coming at the
truth better and more effectual, than that way of
proceeding, which the Czvel Laws prescribe? No
one’s cause or right is, in this case, lost, either by
death or failure of witnesses. The Jurors returned
are well known, they are not procured for hire; they
are not of inferior condition ; neither strangers, nor
people of uncertain characters, whose circumstances
or prejudices may be unknown. ‘The witnesses or
Jurors are of the neighbourhood, able to live of
themselves, of good reputation and unexceptionable
characters, not brought before the Court by either
of the parties, but chosen and returned by a proper
officer, a worthy, disinterested and indifferent per-
son, and. obliged under a penalty to appear upon
the trial. They are well acquainted with all the
facts, which the evidences depose, and with their
several characters. What need of more words? there
is nothing omitted which can discover the truth of
the case at issue, nothing which can in any respect
be concealed from, or unknown to a Jury who are
so appointed and returned, I say, as far as it is
possible for the wit of man to devise.

92

CHAP. XXVII.

Ir becomes now absolutely necessary to inquire
thoroughly how the Laws of England come at the
truth in cases criminal; whereby the form of pro-_
ceedings in both laws being made appear, we may
the better judge, which law does most effectually
discover the truth. If any suspected person who
stands accused for felony or treason committed in
England, denies the crime of which he stands
accused, before his Judges: the Sheriff of the
County where the fact is committed, shall cause
to come before the same Judges twenty-four good
and lawful men of the neighbourhood to the Vill
where the fact was done, who are in no wise allied
to the person accused, who have lands and revenues
to the value of an hundred shillings; and they are
to certify to the Judges upon the truth of the fact,
wherewith the party is charged. Upon their ap-
pearance in Court, as they come to the book to
be sworn, before they be sworn, the person accused
may challenge them, in the same manner as is above
described, and as is usually done in real actions.
Further, in favour of life, he may challenge five
and thirty ; such as he most feareth and suspecteth,
who, upon such challenge shall be struck out of
the Panel, or such marks set over against their
names, that (to use the ¢erm in law) they shall not
pass upon him in trial; and this peremptorily,
without assigning any cause for such challenge;
and no exceptions are to be taken against such

93

his challenge: who then in Hngland can be put
to death unjustly for any crime? since he is allowed
so many pleas and privileges in favour of life: none
but his neighbours, men of honest and good repute,
against whom he can have no probable cause of ex-
ception, can find the person accused, guilty. Indeed,
one would much rather that twenty guilty persons
should escape the punishment of death, than that
one innocent person should be condemned, and
suffer capitally. Neither can there be any room for
suspicion, that in such a course and method of pro-
ceeding, a guilty person can escape the punishment
due to his crimes; such a man’s life and conversation
would be restraint and terror sufficient to those who
should have any inclination to acquit him: in a pro-
secution, carried on in this manner, there is nothing
cruel, nothing inhuman; an innocent person cannot
suffer in life or limb: he has no reason to dread the
prejudices or calumny of his enemies, he will not,
cannot, be put to the rack, to gratify their will and
pleasure. In such a Constitution, under such laws,
every man may live safely and securely. Judge then,
good Sir! which law is rather to be chosen, putting
yourself in the private capacity of a subject*.

* In the two preceding Chapters, Fortescue considers the
evidence in a trial, the verdict of the Jury, and their respon-
sibility in the discharge of the duties confided to them. It
will be oberved that the Jurors in the course of this treatise
are frequently called testes; it would seem that they were
originally the only witnesses in every cause, agreeably to
the maxim, ‘‘vicini vicinorum presumuntur scire:” and that
when any of the Jury protested ignorance of the matter in
dispute, they were removed, and their places supplied by
others. (Reeves’s History of the Law, Henry III, Edw. 1.)
The essential alteration, which has since taken place in
the character of the Jury, does not appear to have been
thoroughly effected till the times of Edward VI, and Mary.
Many changes of a very important description, have been
made in the rules of the Courts, respecting the conduct of
atrial. As regards the evidence on the part of the prosecution,

the

94

the prisoner was for a long time debarred the privilege of
cross-examining the witnesses brought against him: a privilege
which Lord Camden, in the case of the Dutchess of Kingston,
speaks of With enthusiastic eloquence ; yet written examinations
were on many occasions produced in evidence for the Crown,
not signed by the witnesses, and frequently made by persons
who had themselves been capitally convicted. (Amongst others,
the Cases of Sir N. Throgmorton, Udall, the Duke of Norfolk,
Str Walter Raleigh; and see Foster’s Discourse on Treason.) A
practice of interrogating the prisoner upon his trial, for thé
purpose of establishing the charge against him, or taking off
the effect of his defence, appears to have formerly prevailed in
the Courts of Justice of this Country. (See the Cases of Sir
N. Throgmorton, Whitebread, Langhorne, Gaunt ; and since the
Revolution, the Cases of Ashton and Sir W. Parkyns.) By the
Statute of Edward the Sixth, two witnesses were required in
prosecutions for High Treason, and they were to be produced
in open Court. The singular vicissitudes attending this Statute,
are detailed by Mr. Justice Foster in his Discourse upon High
Treason, and by Mr. Reeves in his History of the Faw. At
first slighted, before any attempt was made to invalidate it;
afterwards, from an early period of the reign of Mary till the
Commonwealth, treated as repealed: acknowledged to be in
force under that Government; regarded as unquestionable
Law after the Restoration; and finally cleared from equivocal
meaning and sophistical interpretations by the Treason Act of
William the Third. The nature and functions of the Grand
Jury in ancient times, may be collected from what Glanville
has written concerning the “fama publica;’ and from the
Chapter in Bracton respecting the proceedings “per famam
patria.” (Glanville, lib. xiv. c.1. Bracton, lib. iii. c. 22. and
see Kelham’s Britton, p. 18. .15. a record of an Indictment on
Suspicion.) In the reign of Charles II, it became an object
of deep national concern, to ascertain the evidence which a
Grand Jury ought to require in support of indictments pre-
ferred before them in the absence of the party accused.
C. J. Pemberton instructed a Grand Jury, that it was not
competent to them to examine the credit of the King’s wit-
nesses, and that they ought to be satisfied with any ground
the Crown might shew for calling upon the prisoner. to answer
the imputed charge. This Grand Jury refused to act upon
the advice of the Judge, which they conceived to be at variance
with the principles upon which their institution was founded,
and accordingly ignored a bill that had been preferred against
the celebrated Lord Shaftesbury. Lord Somers has defended
the propriety of their conduct in a celebrated Tract upon the
duty of Grand Juries, in which he repeatedly appeals to the
authority of Fortescue, and maintains “that the Constitution

intrusts

95

intrusts such inquisitions in the hands of persons of under-
standing and integrity, indifferent and impartial, that might
suffer no man to be falsely accused or defamed, nor the lives
of any to be put in jeopardy by the malicious conspiracies of
great or small, or the perjuries of any profligate wretches.”
(Lord Somers on Grand Juries. Security of Englishmen’s Lives,
Tracts, tem, Car. II. Dryden’s Medal, with the Notes of Sir
W. Scott. Sir J. Hawles’s Remarks on Lord Shaftesbury’s Grand
Jury. North’s Examen, and the Tracts of the time respecting
« Tgnoramus.”) With respect to the evidence adduced on
the part of the prisoner in his defence; Mary was the first
English Sovereign who recommended to her Judges to allow,
as a favor, of witnesses being brought against the Crown; but
they did not always adopt this course of proceeding. (4 B/.
Comm. p. 359. Sir N. Throgmorton’s Case, Hargr. St. Tr.)
It was not until the Statute of William, which is applicable to
cases of treason only, that the attendance of witnesses for the
prisoner was compulsory; nor until the Statute of Anne, that
they were examined upon oath in treason and felony. (3 Inst.'79 ;
and see Obsercations upon the Ancient Rule, and its effect in the
Case of Fitzharris, Sir J. Hawles’s Remarks on Colledge’s Case.) The
Act of William first enabled Counsel to conduct the prisoner’s full
defence in trials for treason, in which he was not entitled to
any assistance even for the examination of witnesses: the like
privilege was not conferred in cases of impeachment until
the 20th George II. The difficulties with which a prisoner
had to contend in State prosecutions before the Revolution, are
thus detailed by Sir J. Hawles. “A man is by a messenger,
without any indictment precedent, which by the Common Law
ought to precede, or any accuser or accusation that he knows
of, clapt up in close prison, and neither friend or relation must
come to him; he must have neither pen, ink or paper, or know
of what or by whom he is accused; he must divine all, and
provide himself a counter-evidence without knowing what the
evidence is against him. If any person advise or solicit for
him, unless assigned by the Court before which he is tried,
they are punishable: he is tried as soon as he comes into the
Court, and therefore of a Solicitor there is no occasion or use:
if the prisoner desires Counsel upon a point of law, as was
done in my Lord Russel’s trial, the Counsel named must be
ready to argue presently, and the Court deliver their judg-
ment presently without any consideration. The prisoner, indeed,
hath liberty to except to twenty-five of the Jury peremptorily,
and as many more as he hath cause to except to, but he must
not know beforehand who the Jury are; but the King’s Counsel
must have a copy of them: he must hear all the witnesses pro-
duced to prove him guilty together, without answering each
as he comes, for that is breaking in upon the King’s Evidence,

as

96

as it is called, though it hold many hours, as it happened in
most of the trials: he must not have any person to mind what
hath been sworn against him, and forgotten by him to answer:
there is a proclamation to call in all persons to swear against
him, none for him; as many Counsel as can be hired are al-
lowed to be against him, none for him. Let. any person consider
truly these circumstances, and it is a wonder how any prisoner
escapes.” The foregoing is far from being a complete enumeration
of the severities to which prisoners were formerly subjected ‘on
their trials. The trial of Colledge which gave rise to these re-
marks of Sir J. Hawles, and other cases in the collection of
the State Trials, exhibit many more diversified forms of oppres-
sion. Neither were all these rigorous modes of procedure,
against which Sir J. Hawles inveighs, abandoned immediately
after the Revolution; for we find that several of them were
put in practice at the trials of Lord Preston, and Ashton, of
Anderton, and of the conspirators engaged in the Assasination
Plot. And every impartial mind will reflect with horror on
the atrocious conduct of that Government, which, after the
passing of the Treason Act, could bring individuals to their
trial, and put in force against them those cruel regulations
which it was the object of that Statute to abolish; at a moment,
when the time for the operation of the new law was speedily
to commence, and in one instance, when the next day would
have conferred the benefits of it upon the prisoner. It is like-
wise deeply to be lamented, that the strenuous opposition which
the Treason Bill encountered in its progress through the Houses
of Parliament, cannot fail to blacken the memory of several
individuals, who are otherwise endeared to posterity by the
magnitude of their claims upon the gratitude of this nation.
A striking difference between the form of ancient and modern
trials in civil matters, is in the manner of counting or plead-
ing, which appears from the first reports remaining of our
legal proceedings, to have been originally wivd voce. Some
curious specimens of this practice, of a very early date, are
given by Mr. Reeves in his History of the Law, which
resemble the scholastic disputations, so fashionable in those
days. (Reeves’s History of the Law, Edw. I, Edw. II.) A
distinguishing characteristic of the Verdict is the requisite
unanimity of the Jurors. In ancient times it was in the
power of the Judge, when there was a division of opinion
among the Jurymen, to afforce the Assize, that is, to dismiss
the minority and to substitute new Jurors continually until an
unanimous decision of twelve persons was obtained. (Glanville,
lib. ii. c. 17. Bracton, lib. iv. c. 19. Fleta, p. 230.) So, in ancient
times, verdicts were often taken according to the voice of the
majority, or as it was termed, “ex dicto majoris partis.” (2 Hale,
P.C. p. 297. Fitz. Ab. Verd. 40, Bro. Ab. Jurors 53.) However

it

S7

it became settled by a solenm decision in the reign of Edw. III.
that a verdict by less than twelve Jurors was nugatory. (41 4ss.
11.) And it. is doubtful whether the contrary rule ever
prevailed in prosecutions. (Fleta, p. 52. Kelh. Brit. p. 42.)
Lenity to the prisoner in criminal cases, and in civil the practice
of attaints are supposed by Barrington to have been the causes
for requiring the unanimity of Juries by our law. (Barrington’s
Observations on 29th Chap. of .Magna Charta.) Incidental to the
same regulation is the custom of withholding all refreshment
from Juries until they have delivered their verdict. Barrington
conjectures from the recital of an ancient Statute, that the object
of this rule was to prevent opportunities of bribery. Others
have thought that it arose from a desire to preserve decorum
in Courts of Justice, by prohibiting legal proceedings after in-
dulgencies at the table, and confining them to the time of
morning, when the mind is in greatest vigor. And this hy-
pothesis derives countenance from some of the institutions of
Greece and Rome, and from the language of the Canons of the
Church. (Taylor’s Civil Law, p. 399. Spelman on Terms. Bar-
rington’s Observations on the 34th and 35th Henry VIII.) There
are many cases in the State Trials, in which the Juries appear
to have suffered great hardships on account of their being
denied refreshment and necessary comfort. (Clarkson’s Life
of Penn, Vol. I. p. 77. Cases of Penn and Meade, of the Seven
Bishops, Lilburne, Archibald Hamilton, in the State Trials. Bar-
rington’s Observations on 34 and 35 Henry VIII. where see the
passage from Stiernhook de jure Sueonum. Also Emlyn’s Remarks
upon the Subject, in the Preface to Hargr. St. Tr. As to carrying
the Jury about in Carts till they have agreed. 19 Ass.6. 41 Ass. 11.)
In recent times, the unusual length of trials has sometimes dic-
tated the necessity of an adjournment. (Barrington’s Obervations
on 34 and 35 Henry VIII, and see the References in the Discussion
of the Subject, Hardy’s Case, St. Tr.) So there are several
instances in which a Jury has been dismissed before giving
their verdict. (Sce the Opinions in Sir J. Weddeburn’s Case,
Foster’s Crown Law.) But the adoption of this measure simply
with the design of deferring a trial, because the evidence of
the Crown is found insufficient for the purpose of conviction,
will ever be stigmatized as of a piece with the rest of the
proceedings against the persons suspected of the Popish Plot.—
The distinction between the province of the Jury, and that
of the Judge is an important consideration, arising ‘out of
the enquiry respecting the verdict. This is a question, which |
from its relation to prosecutions for’ political libel,.. has
given rise to more interesting discussions, than perhaps «any
other subject connected with the jurisprudence of the
Country. (Parliamentary Debates, a. p. 1792, particularly. the
Opimon of the Judges, the Protest of the Lords, Lord Mansfield’s
; Paper,

G

98

Paper, left with the Clerk of the House of Lords, and the Questions
propounded to’ Lord Mansfield by Lord Camden. Case of the Dean
of St. Asaph, St.Tr. Hargr. Co, Litt: 155 b.n. 5. Wynne's
Eunomus, Dial. iii. Among the older Authorities, Bracton, lib. iv.
c. 19.: Hobbes’s Dialogue between w Lawyer and Philosopher, p. 625.
Levtathan, ¢.25. Lord Clarendon’s Survey of the Leviathan, p. 129.)
—Another circumstance to which the consideration of the verdict
leads, is the influence that Juries have had in interpreting and
modifying ‘the laws. ° This is’ a singular fact in the History of
the Constitution of’ this Country, but which has: hitherto ‘been
little remarked : some valuable observations on the subject will
us found.in Lord J. Russell's Essay on the’ English Government;
and in a late prosecution for murder in a duel in ‘Scotland, the
topic was introduced with great ‘ability by the counsel for the
defence. (See Printed Trial’ for the Murder of Sir: A. Boswell.)
~— With respect to the ‘penal consequences attaching to Jurors
on ‘account ‘of: their verdict: it is remarkable how often the
complaint’ against them,’ for perjury; is’ repeated in ancient
Statutes, and not against’'the’) witnesses produced at trials.
(Barrington’s Observations. on 11 Henry VII. St.:38 Edw. IIT.
8-Henry VI. 23,'c. 10.'6, ¢.1.°8, c.1. with the Titles Embracery
and Decies 'Tantum, in the Digests.)’ Scarcely less objectionable
than direct bribery was the custom which formerly prevailed
of entertaining the Jury, after giving their verdict, at the ex-
pence of the successful party. Sir T. Smith. in his Common-
wealth, mentions: this to have been the usage in his time: and
a very curious example of it occurs in a letter written to Arch-
bishop ‘Sancroft, by the Solicitor employed forthe Seven Bishops.
‘(Doyley’s Life.of Sancroft.. See also Sir’ J. Hawles's Remarks on
Lord Russell's Case, for the Conduct of the Government in this respect
during the Reign of ‘Car. II.) The doctrine of attaint is now,
_ as Lord Mansfield observed, a mere. sound. in every case, and
in ‘many: cases: it did not ever pretend to be a-remedy. «(Bright
wv. Eynon, 1-Burr: 390. Com. dig. Attaint.). The: practice of grant-
ing new trials has entirely superseded it ; ‘a practice which*may
be traced as highias the ‘year, a. D..1655, and perhaps the reason
it cannot be traced’ earlier, is, that the old reports do notigive
any account of determinations made by the Courts upon motions.
Barrington: states, that no prosecution by attaint had been carried
on against'a Jury for the last three hundred years: Sir T:-Smith
(who wrote his Commonwealth of England inthe year:a!D- 1565)
accounts, for attaints being disused; and amongst°other reasons
= says; that it was very difficult to:procure the attendance of a
Jury,. in this sort of trial ; as svat were ‘very averse to: be
instrumental in inflicting: upon” their’ neighbours the: severe
penalties ensuing upon a conviction. ( Barrington's Observations
on, West. I. Sir T. Smithide Rep. lib. iii. c. 2s 3 Inst. 222. For the
Law inithe timeof Fortescue, the Statutes, Henry VI. 11; 44.15,

3 c. 5.

99

ce. 5. 18, ¢. 2.) It has been observed by Mr. Brodie in his
History of the British Empire, that Fortescue while he speaks
of the attaint, never gives a hint of any power to try or punish
a Jury except in that way. This remark is important with re-
ference to the question, respecting the antiquity of the Star
Chamber ; for it has been contended, that this Court must have
been of very early institution, because it is to be supposed that
there existed somewhere a power to restrain the corruption of
Juries, and it was found that-one Jury would seldom attaint
another. In the controversy upon this subject, the testimony of
Sir T. Smith has ‘been cited for the purpose of shewing that the
Star Chamber; for a long time, seldom ventured to punish juries,
though it affected the right.. Speaking in the reign of Queen
Elizabeth, he says, that although Juries were often commanded
to ‘appear before the’ Court of Star Chamber, the matter was
commonly passed, ever with a rebuke: he specifies.only two
instances, and those occuring in a previous reign, in which Juries
had been fined ; “but,” says he, “those doings were even then
of many accounted very violent, tyrannical,'and contrary ‘to the
liberty» and“custom of the Realm of England.” Examples are
too frequent in English History, of severities having been ex-
ercised against Jurymen, on account of their delivering verdicts
which were displeasing to the ruling power of the State, and
to none does the infamy of such proceedings attach with a dee

dye than to Cromwell. (Lord Herbert's Henry VIII, p.6. The
Cases of ,Throgmorton’s and Lilburne’s Juries, in the St. Tr. and
see “ The World’s Mistake in Oliver Cromwell,’ Harl. Misc.) In
the reign of Charles IJ. Bushell was brought before the Court
of Common Pleas, upon a habeas corpus, by which his commit-
ment appeared to be expressed in the following terms: ‘“ That
being a Juryman among others charged at the Session Court
of the Old Bailey, to try. the issue between the King, and Penn
and Meade, upon an indictment for assembling unlawfully and
tumultuously, he did ‘contra plenam et manifestam evidentiam”’
pany given in Court, acquit the prisoners indicted:” Vaughan
the Chief Justice, discharged the juryman, and, in an admirable
argument, maintained the invaluable doctrine, that the Jury, in
the delivery of their verdict; which is’a judicial function, are
unaccountable to any power in the State. .

’

G 2

100
CHAP. XXVIII.

~ To whom the Prince——I see no difficulty at all
in the case, my good Chancellor, to make me hesitate,
or waver as to the choice I am to make ;: particularly
in the manner you require and propose. ‘For, who
would not rather live under a law which renders life
secure and happy, than where the law is found in-
sufficient for protection, and leaves a man defenceless,
under a series of insults and barbarities from one’s
enemies? That man cannot in any wise be safe
either in his life or property, whom. his adversary
(in many cases which may happen) will have it: in
his power to convict out of the mouth of two
witnesses, such as are unknown, produced in court
and pitched upon by the prosecutor... And, though
in consequence of their evidence, he be not punished
with death, yet an acquittal will not leave him in’
a much better condition after the question has been
put, which cannot but affect the party with a con-
traction of his sinews and limbs, attended with’ con-
stant disorders and want of health. A man, who
lives under such a government, as you describe,
lives exposed to frequent hazards of this sort: ene-
mies are designing and desperately wicked. Wit-
nesses cannot well bring about such a wicked device,
when, what evidence they give in, must be in
open Court, in the presence and hearing of a jury;
of twelve men, persons of good character, neighbours
where the fact was committed, apprised of the cir-
cumstances in question, and well acquainted with the
lives and conversations of the witnesses, especially as

101

they be near neighbours, and cannot but know whether
they be worthy of credit, or not: tt cannot be a secret
to every one of the Jury what is done by, or amongst
their neighbours. 1 know of myself more certainly
what is a doing at this time in Berry, where I reside,
than what is doing in England: neither do I think
it possible that such things can well escape the
observation and knowledge of an honest man, as
happen so near to his habitation, even though trans-
acted with some kind of secrecy. But, since these
things are so, I admire very much, that the law of
England, «which in this respect. is.so.commodious
and desirable, should not obtain all the world over’.

@ The institution of the Jury, possesses a decided advantage
over every other judicial method of investigating facts, scucigelr
on account of its publicity, and of the participation in the admi-
nistration of justice, into which the country at large are thereby
admitted : the Civil: Law, was not, however, so inferior to our own,
as Fortescue represents, in the calculation of probabilities for the
ascertainment of truth: the following passage from the Digest,
containing some observations of the Emperor Adrian, on the
subject of evidence, ‘will be sufficient to shew, that numerical
testimony had not: that influence upon judicial determinations,
which Fortescue would insinuate. ‘Que argumenta ad quem
modum probande cuique rei sufficiant, nullo certo modo. satis
definiri potest: sicut non semper, ita saepe sine publicis monu-
mentis cujusque rei veritas deprehenditur ; alias numerus testium;,
alias dignitas et auctoritas, alias veluti consentiens fama confirmat
rei, de qua queritur fidem. Hoc ergo solum tibi rescribere
possum summatim: non utique ad unam probationis speciem
cognitionem statim alligari debere, sed ex sententia animi tui
te wstimare oportere, quid aut credas, aut parum probatum tibi
opinaris.”.) 5 4 ile # Loch tl

102

CHAP. XXIX.

oe

-» Chancellor. > Avi:the' time: your » highness: was
obligedto quit: England; youowere very “young,
consequently: the natural: disposition and: qualities: of
your native country could*not be known to you; had
the case been otherwise, upon a comparison of the
advantages and properties of other countries with
those of your own, you would notbesurprized
at those things which now agitate and disturb you.
England is.a country .so. fertile, that, ; comparing
it acre. for:-acre, it gives. place» to’ no one»other
country: it almost’ produces things’ spontaneous,
without man’s labour or toil. “The fields, the plains,
groves, woodlands, ; all sorts. of Jands. spring. and
prosper: there so».quick, they are so luxuriant, that
even uncultivated spots of land, often bring im more
profit to the occupant, than those which are manured
and..tilled;.though...those. too . are , very, fruitful. in
plentiful crops of: corn. ‘The: feedings lands are
likewise. enclosed with hedge-rows and’ ditches,
planted. with trees, which tence the. herds. and
flocks from bleak. winds;..and ‘sultry. heats, and..are
for the most part so well watered, that they do not
want the attendance of the hind, either day or night.
Thereare neither wolves, bears, nor lions in England ;
the sheep lie out a nights without their shepherds,
penned up in folds, and the lands are improving
at the same time*: whence it comes to pass, that the

* There is evidence both of wolves and bears having existed
in this Country. (Camden’s Brit. Derbyshire, Yorkshire, Cale-
donia, Archeol. Antiq. Soc. Vol. III. p. 3. Vol. X. p. 162.

Dugdale’s

103

inhabitants are seldom fatigued with hard labour,
they lead a life more spiritual and refined: so did
the Patriarchs of old, who chose rather to keep
flocks: and herds, than to disturb their peace of mind,
with the more laborious employments of tillage and
the like: from hence it) is, that the common people
of England are better inclined and qualified to
discern into such ‘causes; which require a nice
examination, than those who dwell upon:their farms,
and are constantly employed in husbandry affairs,
whereby they contract a rusticity of understanding”.

Dugdale’s Warwickshire, p. 298. Pennant’s Zoology, p. 163.
And ‘notwithstanding the Pricer given by Fortescue, of ~
prolific nature of the English soil, we meet with repeated in-
stances of famines, attended with dreadful consequences, from
the time of the Conqueror, to that of Henry VI: indeed, in
the same reign in which Fortescue wrote, wheat was selling
from’ 2s. 6d.'to 3s. 4d. the bushel, and the poor people were
obliged to make themselves bread of fern and oats. — (Strutt’s
Antig. Vole Il. “on the. Husbandry of the English.” Respecting
the Nature and Extent of the ancient Woodlands, Evelyn's Sylva,
Lib. ‘iii c. 6. For other circumstances respecting the ancient
Condition of the Country, see Tracts on the Vineyard Controversy ;
and general Descriptions, Pref. to’ Harrington's ' Oceana.
Sir W. Temple on Gardening.) wit od eld

» The fleeces of this Country, are noticed by many old authors:
thus’ an ancient writer, addressing himself to England, says,
« Licet’ maris augustata littoribus brevi terre tio .disten-
daris, tibi tamen ubertatis tam famosa per orbem benedixerunt
omnium littora nationum de tuis ovium -yelleribus calefacta.”
Several causes conspired to give a pre-eminence to pasturage over
agriculture.» The dealing in grain was subjected to many
impolitic restrictions, arising from mistaken views upon the subject
of population ; and from absurd apprehensions of the consequences
of forestalling ; an offence, which in the legislative rhetoric of
the time of Edward I, was denounced.as rendering a man ‘‘ totius
communitatis et patrie publicus inimicus.” |The settling also of
Flemings in this Country; and the protection afforded by several
Statutes, tended to increase the importance of our woollen manu-
factures.. But another cause of more effectual operation remains

to be noticed, for before the time when Fortescue’s book was — -

written, an alteration in the habits, of the aristocracy had com-
menced, and they began, to be, induced, from a motive of in-
creasing their revenues, to dismiss their, numerous adherents,

and

104

England is so thick-spread and filled with rich and
Janded men, that there is scarce.a small. village
in’ which you: may not find a knight, an esquire,
or some substantial householder, commonly. called,
a. Frankleyne ; all men of considerable estates:
there are others who are called Freeholders, and
many Yeomen of estates sufficient to make a sub-
stantial Jury, within the description before observed.
There are several of those Yeomen in England who
are able to dispend by the year a hundred pounds,
and more: Juries are very often made up of such,
and, in causes of consequence, they consist of
knights, esquires, and others, whose particular
estates, in the whole, amount to upwards of three
hundred pounds a year*. Wherefore it is not to

and to let their lands in large tracts, to persons who would pay
considerable rents: which practice speedily introduced an
extensive system of pasturage. (See Brodie’s British Empire,
Vol. I. p. 19, 29. A Proclamation, a.p. 1521. cited by Stow.
Rossi, Hist. p. 39, 88, 114. Rous died at an advanced age, A. D.
1491.) A system that finally occasioned a striking alteration
in the appearance of the country. It is with reference to this
circumstance, that Sir T. More, speaking of the sheep, says,
that they had become, “ tam edaces, tamque indomiti, ut homines
devorent ipsos, agros, domos, oppida vastent ac depopulentur.”
(Str T. More’s Preface to his Utopia. Strype’s Memorials, Vol. I.
p- 392. Vol. II. p. 141. And see Latimer’s Account of the Cir-
cumstances of his own Family, first Sermon Preached before King
Edward.) The progress of this change in the occupations
of the people, was in vain attempted to be restrained by the
Legislature, and was pregnant with many consequences of great
importance, both as they regarded the manners of the nation,
and the spirit of the Government. (See the Observations respect-
ing the Statute for the Conservation of Farm Houses, in Bacon's
Henry VII. Bacon’s Speech in D’ Ewes’s Journal, p. 551. Obser-
vations at the Close of Tirringham’s Case, 4 Rep. 3 Inst. 204,
and the Statute of 25 Henry VIII. limiting the size of Flocks
of Sheep, and the Preamble, which mentions the Extent of the
Grievance then felt. With reference to the Effects of the System of
Pasturage and Inclosure, upon the Progress of Towns, see 12 Ric. II.

c:5; 7 Hen. IV.c.17; 2 Hen. V.c. 4; 4<Hen. V.c. 4.)
* Fortescue calculates the value of property by “skuta,”
which were gold coins of the value of 3s. 4d. (Fleetwood Chr.
Pret.

105

be imagined that persons, in such wealthy circum-
stances, can be suborned or prevailed on to'perjure
themselves; they are supposed to be restrained, not
only through a religious principle, but also as they
regard their honor and reputation, as they would
avoid the very great scandal and detriment which
must accrue by such behaviour; and further, lest the
infamy should extend to and affect their heirs.
Other countries, my Prince, are not in: such an
happy situation, are not so well stored with inha-
bitants. Though there be in other parts of the
world, persons of rank and distinction, men of great
estates and possessions, yet they are not so frequent,
and so near situated one to another, as in England ;
there is no where else so great a number of land-
owners: in a whole town, in any other country, you
can'scarce find a man of sufficiency enough to be
put upon a Jury: for, except in large cities and
walled towns, there are very few, besides the nobility,
who are possessors of estates, or immoveable goods,
to any considerable value. The nobility do not
keep in their hands any great scope of feeding-lands ;
it does not comport with their rank and quality
to cultivate vineyards, or put their hands to the
plough: and yet the main of their possessions con-
sists in vineyards and arable lands, except some
meadow. grounds, which lie along the great rivers,

Pret. p. 23.) We find mention of several other foreign gold coins,
circulating in this Country, as Byzants and Florences, although
our Sovereigns in the times of Edward III, and of Henry III,
if not in the intervening reigns, made gold coins at their mints.
(Liverpool on Coins, p. 38.) In Fleetwood’s “Chronicon Pre-
tiosum,” is contained an account of the price of commodities
and of labor, the worth of the precious metals, and the state of the
coinage throughout the reign of Henry VI; it consequently is
calculated to afford a correct estimate of the value of money
when Fortescue wrote. (See also Henry's History, Vol. V. p. 525.
For the Value of Land in the time of Henry VI. Paston Letters,
Vol. IIT. Lett. 21 ; and on the Depreciation of Money, Sir G. 8.
Evelyn’s Endeavours to ascertain a Standard of Weight and
Measure, Philosophical Transactions, a. 0. 1798.)

106

and the woodlands; the pasture of, which is in
common to their tenants, and neighbours. How
can it then be, that in such countries a Jury can be
made up of twelve honest men of the neighbourhood,
near where any fact in question is brought on to
trial; seeing they cannot be well called of the
neighbourhood, who live at any remote distances?!
It. will be very difficult to make up a Jury of twelve
men, though remote from the place where the fact
in. question lies, after that, the party accused shall
have:.challenged his, thirty-five peremptorily, who
lived nearest to .the place: wherefore in those
countries they must make up a Jury, either of
persons living: at. great distances from. the ,place
where the. fact was committed; persons wholly
unacquainted with the parties and. their .circum-
stances; or the, Jury must. consist of people of
inferior rank, who have no proper notion, either
of shame or infamy, who have no estates or charac-
ters to lose; so prejudiced and incapable in point
of education, as to be able clearly to discern on
which side the truth lies. These things considered,
you may cease, my Prince, your surprise, why that
law, by means of which in England the truth is
enquired into, is not in common. to other countries,
because other parts of the world cannot furnish
Juries of so great sufficiency, or equally qualified *.,

* The. Prologue to Chaucer's Canterbury Tales, presents an
interesting description of ‘the characteristic qualities, by which
the middle ranks of the people. were formerly distinguished.
A particular account is there given of the knight, the esquire,
the yeoman, and’ the frankleyne, mentioned in the. text. The
distinctions of rank, which have been formed in this Country,
‘are important, as connected with the progress of national manners :
in, this: point of view, the Statute of Henry. V, of additions,
deserves particular attention: Fuller; in his English 'Worthies,
supposes that it..was. the. circumstance of the. insurrection of
Wat» Tyler,, and Jack Straw, which ;made. the. English. gentry
desirous of not being confounded with the levellers and rabble ;
but the adoption of these distinctions in society, will eens

ascrl

107

ascribed to the operation: of more general causes: the same
writer mentions, that in the reign of Henry VI, the addition
de” such a place came to be left off, and that of knight
and squire to be assumed. Camden observes, that the: name
of esquire, which in ancient times, was a name of charge: and
office, did not become a title of dignity, till the reign of Richard I;
Spelman, in his Treatise upon Ancient Deeds, notices that some
wrote themselves “ armigeros,” in the reign of Edward III; but
he agrees with Fuller, who says, that additions in writing,
did :not :become usual, till the time of Henry the Sixth, and
he dates the general assumption of the title of esquire, from
the reign’ of James: he mentions, that the addition of yeomen,
was seldom used in’ writings, until the reign of Henry VIII,
a circumstance, which) may be thought to receive illustration
from the remark of Bacon, that Henry VII, amortized a great
part of: the land of the Country, to the occupation and ‘hold
of the:yeomen, of a condition between gentlemen and peasants.
This chapter will be read with considerable interest, as: shewing
the importance of. the middle ranks of society, in the time
of Henry: VI.. The reader may be: induced to ‘compare it
with the» Statute. 23 Henry VI, c. 15.» which’ points out the
proper class of persons, out of which knights of the ‘shire ought
to\be:chosen:: and the text may be thought to afford a valuable
illustration: of that ‘most important ‘Statute,’ passed in the'same
reign, which ‘regulates the qualification of voters, at county
elections:—In another point of view, the history of ranks in this
Country, may be deemed of importance, when it is considered
the permanence and the improvement of the English: Con-
stitution, is, ina great measure, owing to the absence of exclusive
privileges, attached to the lesser nobility, and to the legal equality,
for every essential purpose, of all ranks below: the Peerage.
(Sir T.. Smith “de Republica,” lib. i. c. 20, 21. Lord Js Russell
on the Constitution, c. 1. Hallam, Vol. 11. p..198: For some Ex-
ceptions to this Principle, see Statute of Merton, c. 7. Statute
34 Edw. IIT. 3 Inst. 141. Britt. c. 25. fol. 49. 6. 23 Henry VI.
c. 14.) Some writers have attributed much of the excellence of
the Constitution to the circumstance, that the knights anciently
sat in one assembly with the citizens and burgesses. (Lord
J. Russell on the Constitution, c. 1. Hallam’s Middle Ages, Vol. I.
p- 8. See on this Point, Append. to Hume's History, Vol. II.
n. F.)—Respecting the conferring of titles by the Sovereign of
this Country, it has been observed, that Walsingham made
several unsuccessful attempts to obtain the honor of knighthood,
at the hands of Elizabeth. (Welwood’s Memoirs, p. 14.) The list
of knights created by James, on his accession to the throne, in
his way to London, may be seen in Mr. Ellis’s recent collection
of Original Letters. There issued many commissions at different
periods, in pursuance of the Statute “de Militibus,” for the
purpose

108

ose of compelling persons, of a certain estate, to take u
chara os thal Vealere of knighthood: this practice is fone Sa
to have materially contributed to produce the troubles and
distresses, of the reign of Edward. II; and when revived by
Charles I, it greatly augmented the public discontents: Mr. Brodie
observes, that persons who came within the operation of this
Statute, were not, on that account, authorized to use the title of
knights. (Rymer’s Fed. Vol. XV. p. 493, 497, 504. Barrington’s
Observations on 1 Edw. II. 2 Inst. p. 594. Vol. XIV. Arch. Antiq.
Soc. p. 202. Clarendon’s History, lib. i. p..53. Brodie’s History
of the British Empire, Vol. II. p. 282.)—The present. chapter
receives a particular illustration, from the circumstance, that
a catalogue of the gentry of England, was composed by Com-
missioners in the reign of Henry VI, of which an account. is
given in Fuller's Worthies; another, similar to it, was made
in the reign of Henry VIII. The writings of our legal antiqua-
rians, abound with a variety of curious particulars explanato
of the early distinctions of ranks in this Country. (See Copy
Srom a Manuscript in the Harleian Library, respecting Esquires,
Strutt’s Antiquities, Vol. III. p. 15. Concerning the, Appeeeaee of
‘Rascal, Sir Va Smith de Republicé, lib. i. c..21.. Birch’s Memoirs
of Elizabeth, Vol. I. p. 508. D’Israeli’s Curiosities of Literature.
Of Knights, Selden’s Titles of Honor ; and see ibid, respecting the
Addition of “ Chivalier” to Peers, and on the word “ Sir.” Spelman
de: Milite Dissertatio. Of the Franklin, 1st Part Shakespeare's
Henry IV, Act 2, Scene 1. Cymbeline, Act. 3, Scene 2; and
further, upon the Subject of Ranks and.Precedency in England,
2 Inst. 594. 667. 4 Inst. 361. Keilway’s, Rep. 58 a. Barring-
ton’s Observations on 20 Rich. II, 34 Edw. III, 1 Hen. V.
Selden’s Table Talk, Art. Gentleman. Spelman on Ancient Deeds.
Sir T.Smith de Rep. lib.i..c. 18, 19. .Heyyoood on the, Desemetions
of Society among the Anglo-Saxons. Millar on Ranks. Verstegan’s
Decayed Intelligence, c..10._ Camden’s Britannia “on the Degrees
in England,” p. 234, and the Glossarists:)

’ 109

CHAP. XXX.

=

Prince. Tuoven we have already agreed in
it, that “comparisons be odious;” yet the Civil
Law, ‘as you have made out the comparison, and
set forth the reasons, is delivered from all imputation
of blame or defect: for, although you have preferred
the Laws of England to it, yet the defect is not in
the law itself; neither the Civil Law, nor the first
legislators stand impeached: you have only demon-
trated that the country, where it prevails, is the
occasion of it; by means of which it does not so
effectually get at the truth, in dubious cases, as the
Laws of England do; that the Law of England, in
the case just now discussed by you, is better accom-
modated for England than the Civil Law, is out of
dispute; and we cannot have the least inclination
to introduce the Civil Law instead of it: but this
superior excellence of the Law of England does
not happen through any blameable defect in the
other law; but, as you say, the wealth and popu-
lousness of the country are the cause’.

* The most zealous admirer of the trial by Jury, must admit,
that on numerous occasions it is found to be a partial or an
secage w tribunal. Yet it would perhaps be impossible by
any other form of procedure to render the decision of judicial
questions, subject, in a less degree, to the influence of prejudice
or bias: it frequently also happens, that a Jury is better qualified,
than any other description of persons, to determine the matter
submitted to its consideration. But if it were a valid objection
to the relaxing of the rules of evidence established in our Courts,
that Juries do not ordinarily possess that capacity and dis-

crimination

110

crimination, which a more liberal admission of proof would
render indispensable: it canpot be denied, that the policy of
the State might devise some institution which in this res

would be more competent for the eliciting of truth. Still a
prudent legislator would pause before he ventured, in any case,
upon removing the decision of causes out of the hands of the
people. It is a peculiar feature in the English Constitution,
that what in other States is the work of Government, amongst
us is done by the nation. It would be impolitic to make any
infraction upon this principle, which should operate to take away
from the mass of the people the performance of those duties,
the discharging of which, independent of its primary object,
the investigation of facts, is found productive of inestimable
consequences both moral and political. In prosecutions instituted
by the Government )of the Country, the trial by Jury will S
be, upheld on ‘account of the protection it affords to individu

in an-unequal contest with the authority of the State: In the
most perilous and arbitrary times, it has proved a safeguard to
the subject: The verdict of the Jury which acquitted Lilburne,
is said; by Clarendon, to haye occasioned more regret to Cromwell
than the loss of a battle: The acquittal of the Seven J adage
animated the dispositions of the nation to a successful effort for
shaking off the yoke of the Stuarts. The nature of that security,
which at such times the trial by Jury is peculiarly calculated to
give to the subject, is luminously explained by Prynne in his
Protest for Sir J. Maynard. Sir E. Coke in several parts of his
Institutes, takes occasion to admonish his readers against all
infringements on the “ordinary and precious trial per legem
terre” from the example of the proceedings of Empson and
‘Dudley: These “ bold men, and regardless, of fame” . were con-
_spicuous for. their attempt to introduce absolute, and F otiem
trials by discretion: they paid, however, the penalty of their
guilt by an ignominious death; and they have been ‘consigned
to perpetual obloquy, by the immortal historian of the times.

iii

CHAP. XXXfI.

—@——

Bur, my good Chancellor, though the method
whereby the Laws of England sift out the truth,
in. matters which are at issue, highly. pleases me;
yet there rests one doubt with me, whether it be
not repugnant to Scripture: Our blessed Saviour
says to the Pharisees (St. John vii. 17.) “It is
written in your law that the testimony of two men
is true.” And, in confirmation, he subjoins in the
very next verse, “I am one that bear witness of
myself, and the Father that sent me beareth witness
of me.” The Pharisees were Jews; wherefore it
is the same thing to say, “It is written in your law,”
as to say, “It is written in the Law of Moses,”
which was no other than the Law of Gop, given
by Moses to the children of Israel; wherefore to
contradict this Law of Moses, is, in effect, the same
as to contradict the Law of Gop; from whence it
follows, that the Law of England deviates from this
Law of Gop, which it does not seem lawful in any
wise to impugn. It is written also (Matt. xviii. 16.)
that our Saviour, speaking of offences, and forgiv-
ing one another, amongst other things, delivers
himself thus, “If thy brother will not hear thee,
then take with thee one or two more, that, in the
mouth of two or three witnesses, every word may
be established.” Now, if in the mouth of two or
three witnesses, Gop will establish every word; why
do we look for the truth in dubious cases, from the
evidence of more than two or three witnesses. No
one can lay better or other foundation, than our

1i2

Lord hath laid. This is what, in some measure,
makes me hesitate concerning the proceedings ac-
cording to ‘the Laws of England, in matters of
proof, wherefore, I desire your answer to this ob-
jection *.

* Sir M. Hale, in his Tract on the amendment of the law,
considers the applicability of the Mosaic Dispensation to the
existing circumstances of the world: his work contains many
sensible observations upon the subject discussed in the present
chapter. The Puritans went the length of. insisting, that the
judicial laws of Moses, for the punishment of offences, ought to
be observed: The necessity believed to be imposed by the Law
of God, for proving an offence by two witnesses, has frequently
been the subject of argument, in judicial. proceedings. (Cases
of Vaughan, Sir J. Fenwick, Bishop Atterbury, St..Tr..Reniger
v. Fogossa, Plowden’s Comm. 8, Shotter v. Friend Corthew 142;
and see 3 Inst. 26; also, Mosaicarum et Romanarum legum vetus
eollatio, cum notis Pithei.) rf .

11s

CHAP. XXXII.

—=>——

Chancellor. Tur Laws of England, Sir! do not
contradict these pussages of Scripture for which
you seem to be so concerned; though they pursue
a method somewhat different in coming at, and
discovering the ‘truth: how does that law of
a general council prejudice or comdemn the. testi-
mony of two witnesses, whereby it is provided, that
the Cardinals shall not be convicted of any crime,
unless upon the deposition of twelve witnesses? If
the testimony of two be. true, @ fortiori, the testi-
mony of twelve ought rather to be. presumed to
be so.. The rule of law says, “the more always
contains in it that which is less.” So, the repay-
ment of whatsoever the host spent more than the
two-pence, towards the taking care of the man who
fell amongst thieves, was promised to be paid punc-
tually to him by the good Samaritan, when he came
again. Shall not an impeached person, who endea-
vours to prove himself to have been in another place
at the time of the fact alleged and committed, be
obliged to produce more than two or three witnesses,
when the prosecutor has proved, or is ready to prove
the charge by as many. So that person who takes
upon him to convict any number of witnesses of
perjury, must of necessity produce a greater number
of witnesses ‘against them ; so that the testimony of
only two or three witnesses shall not, in all cases, be
presumed to be true. “But, the meaning of the law
2s this, that a Jess number than two witnesses shall

Hi

114

not be admitted as sufficient to decide the truth in
doubtful cases. And this appears from Bernard,
(Extra. de testi. ca. licet in glossa ordinaria) where
he puts many cases, in which, by the laws, more
than three witnesses are required ; in some cases,
five, in others, seven. And, that the truth in some
cases may be proved by two witnesses only, when
there is no other way of discovering it, is what the
laws of England likewise affirm, As, where facts
are committed upon the high sea, without the body
of any County, which may be afterwards brought to
trial before the Admiralty-Court; facts of this kind,
by the Constitution of England, are to be proved. by
witnesses, without a Jury*. In like manner are pro-
ceedings before the Lord Constable, and, Earl
Marshal, upon a fact committed in another kingdom,

* The first case in our law, extant, relating to the. marine
jurisdiction, is in the time of Edward I: but the pagal power
of the Admiral does not appear to have excited the attention of
the Legislature, until the reign of Richard II, when his autho-
rity was defined. The Common Lawyers formerly regarded
the proceedings in the Court of Admiralty with a jealous eye:
In the reign of James, formal articles of complaint were pre-
sented against the Judges, for the purpose of restraining thetn
in their practice of granting prohibitions: to these the Judges
replied in writing, justifying the gtounds upon which they
proceeded: in the course of the discussion the authority: of
Fortescue in the text, is appealed to: the part of the Institutes
in which the argument concerning the Admiralty is related,
has been animadverted on by Prynne, in a manner exhibiting
the extraordinary stores of his erudition. (Prynne’s Animadver-
sions, p. 75. 4 Inst. c. 22, Articuli Admiralitatis.) _In the reign
of Charles II, the jurisdiction of the Court of Admiralty again
became the subject of contention, and there is preserved an able
argument delivered by Sir L. Jenkins before the Lords on that
oceasion: {Waynne’s Life of Sir L. Jenkins, p. 76.) Some in
teresting particulars respecting this Court, will be found in the
following authorities. (Spelman’s Treatise on the Jurisdiction ©
the Admiralty, Selden’s Mare Clausum, Cases of the Admiralty,
12)Rep: Harl. Misc. Vol: VIII. p. 371. Luder’s Tract on the
Laws of Orleron. Zouch’s Admiralty Jurisdiction. Nicholson’s His-
torical. Library, Part III. 4 Jnst.124. where the Admiral is called
by Coke, the English Neptune. Reeves’s History of the. Law,
Rich. If. Selden’s Notes to Fortescue.) .

115

so as the cognizance of it belong to the jurisdic-
tion of the Court of Chiwwalry’. So, in the Courts

» In arbitrary times the Court of Chivalry, from the cireum-
stance of its proceeding not being controlled by the presence
of a Jury, has been deemed a suitable instrument for the op-
pression of the people. (See the 26th Article of the Charges pre- .

ferred against King Richard If. Hayward, p.201. Also Rot. Parl.
5 Henry IV. Vol. III. p. 530. Hallam, Vol. I. p. 360.) In the
time of Charles I, it is represented as giving more damages for
words, not actionable, in two days than all the Juries in all the
Courts of Westminster Hall, during the term and the sittings after.
{Clarendon’s Life.) Mr. Hume has adduced the patent of High
Constable, granted to Earl Rivers by Edward IV, to prove the
arbitrary nature of that office; but Coke pronounces this to have
been a most irregular precedent. (4 Inst. 127, and see further on
this Patent Hallam’s Middle Ages, Vol. Il. p. 361. Brodie’s Intro-
duction, p. 227 ; and see ibid. respecting a Statute of Edw.VI, cited
by Hume on ths Subject.) After the attainder of the Duke of
Buckingham, in the reign of Henry VIII, by which the office
of Lord High Constable became forfeited to the King, the
authority and charge of it were deemed too ample to be
intrusted to a subject. Cardinal Wolsey was desirous of filling
this office, but was thwarted in his attempt, by the patriotic
resistance of Sir T. More. It has been a controverted question,
whether during the vacancy of the office of constable, the juris-
diction incident to the Court ef Chivalry, can be exercised
by the Earl Marshal alone. (See the Authorities collected,
argr. Co. Litt. 74 6. n. 1.) The earliest notice of the autho-
rity of the Court of Chivalry, is in the reign of Edward IIT;
its powers were first defined in that of Richard II. The
Statute 1 Henry IV. c. 14. contains a provision, the effect
of which was to prevent the determination of any matter
in the Court of Chivalry, which could be tried at Common
Law. Whilst the Crown was in possession of territories
om the continent, there was great employment for this Court:
but the necessity of resorting to it was in some measure
diminished by means of a fiction, devised in the time of
Edw. III, to make matters arising abroad, cognizable by
a Jury from an English County: and its criminal jurisdiction
was rendered less necessary, by the Statute of Henry VIII,
for trying treasons committed beyond sea. (4 variety of Par-
ticulars respecting the Authority of this Court, and the manner
Aa Proceedings, will be found in the following References. Reeves’s
History of the Law, Edw. III, Rich. II. Lambard’s Archeion,
p- 51. 4 Inst. 123. Several Tracts in Hearne’s Discourses.
Selden de Comite Mareschalli. Runnington’s Hale on: the Common
Law,

H 2

116

of certain liberties in England, where they proceed
by the Law of Merchants, touching contracts between
merchant and merchant, beyond the seas, the proof
is by. witnesses only*: because in such like cases,
there is not of the neighbourhood a number suffici-
ent to make up a Jury of twelve men: as in contracts
and other cases arising within the kingdom is usually
done. In like manner if a deed, in which witnesses
are named, be brought into the Courts of law,
process shall go out against such witnesses, who,
together with a Jury shall enquire upon their oaths,

Law, p. 39, 40 a. Madoa’s Exchequer, p. 27. Spelm, Gloss.
Voc. Constabularius, Cotton’s Posthuma, p. 64. Harg. St. Tt.
Vol. XI. p. 124. Hargr. Co. Litt..74 6. n. 1. There is no Record
of Cases in the Court of Chivalry ; Rushworth, who had kept an
account of them, lost his Notes, by lending them to a person who
never returned them.)
_ ° A variety of particulars respecting the operation of ; the
Law Merchant, and the course of proceedings in the Court
of the Mayor of the Staple, are collected in a chapter of the
fourth Institute: and much information upon the subject will
be found in Prynne’s Animadversions. It was enacted by the
Statute 36 Edw. III. c. 7, that Merchant Strangers might either
sue before the Mayor of the Staple, or at Common Law. The
proceedings in a particular cause, which was tried occuring
to the Law Merchant, in the reign of Edw. II, are thus rela’
by Selden: “John Combton brings Debt secundum Legem
Mercatoriam upon a Tally, against another Merchant, and .
tenders Suit by Two Witnesses: The Defendant Wages his |
_ Law, but the Judgment is thus by Ornesby pronounced. John
ve Combton Marehyand Port un brief cicns vers un
Raut Marchand cf Demande VI. Marks par un Hus-
ticies forme selon fa lep Marchand (it had been com-
menced by Justicies, and came out.of the common pleas into the
Eire) et ad mis avant un taille la quelle tu tender a
prover per Il, 6, per Richard ct par Geifrep gue
estepent al blee mesurer (the Debt was due for Corne)
et al liverer, mes bous. per vostre lep vous Voudres
coverer la guele cest cort en ceo cas ne Doet mp
resceiver et refuses la prove que il vous tend selon
ley HMarchand et selon la sature de sun briefe, per
gic agard cest court que Pow rescovere sa Debt
Pers Mous come vers non Oefendu et ses Dammages
De cent gous. (Selden ad Fortescue: and see Bracton 334 a.
444 a. On the Pipomder Court, Barrington’s Observations on
17 Edm. IV.)

qa

whether it be the deed of that party, whose it is
supposed to be’. Wherefore, the law of England
does not call in question any other law which finds
out the truth by witnesses, especially when. the
necessity .of the case so requires. The Laws of
England observe a like method, not only in the
cases already put, but in some others, which it is not
material now to enlarge upon: but it never decides
a cause only by witnesses, when it can be decided by
a Jury of twelve men, the best and most effectual
method for the trial of the truth; and, in. which
respect, no other laws can compare with it. This
proceeding is less liable to the hazard of bribery,
subornation, or other sinister methods; nezther can
this method of proceeding in any case miscarry for
want of evidence: what the witnesses give in upon
oath cannot but have its due effect: neither can
a Jury be perjured, but that for such their crime
they must expect a very severe punishment, and the
party thereby aggrieved is, and will be entitled to. his
remedy. These things are not transacted at the will
and pleasure of strangers, or parties wholly unknown,
but upon the oaths of honest, considerable and cre-

* Whenever the witnesses of a deed were joined with. the
Jurors, they so far differed from the panel, that they could
not be challenged, nor was their concurrence necessary to
complete the verdict. It was a rule, that the Jurors. should
be exempt from attaint, if the witnesses agreed with them ; but
if they dissented, the Jurors were liable as in other cases..
(Reeve’s History of the English Law, Edw. III. See further
as to these Witnesses, 2 Inst. 448. 662. 3 Inst. 112. 130.) The
vexatious delay which was sometimes occasioned by fraudulently
keeping the witnesses from appearing, was the subject of
legislative redress, in the reigns of Edw. II, and Edw. III.
(Reeve’s History, Edw. II. Edw. III. Barrington’s Observations
of 12 Edw. II. St. 1.); and this abuse rgadually led to the
abolition of the practice of summoning them. The clause of “his
testibus,” in the deeds of subjects, continued until, and in the
reign of Hen. VIII. (Co. Litt. 6 a. 2 Inst. 78.) Many curious

articulars concerning the witnesses to deeds, are to be found
in Hickes’s Dissertatory Epistle. Spelman on Ancient deeds,
Madox’s Formulare Anglicanum.

118

' ditable men, who value ‘their character, who ‘are
neighbours to the parties concerned, to whom there
can be no cause of challenge or distrust as touching
the verdict they shall give in. Oh! what detestable
villanies often happen from the method of proceed-
ings by witnesses only. If a man contract matrimony
in a clandestine manner, and afterwards before wit-
nesses, betroth himself to another woman. In'this
case the Contentious Court will oblige him to con-
summate with this last woman ; and the Penitential
Court will adjudge him to cohabit with the first, if
he be duly required thereto; and he will be obliged
to do penance every time he shall be informed against
for'cohabiting with the other woman, to whom he was
so betrothed; nay, though in both courts, one’ and
the same man be the Judge. May’one not say in
the case before us, as it is written concerning the
Behemoth, (Job xl. 17.) that indeed it is very
intricate and perplexed. The person contracting
shall never afterwards cohabit with either of the
women, or with any other woman, without being
prosecuted for so doing. A mischief of this kind
cannot possibly happen in any case, according to
the proceedings of the Law of England, though
a Behemoth himself were solicitor in the cause,
Are you not now convinced, most excellent Prince,
that the more objections you raise against the Laws
of England, the more amiable and resplendent they
appear’.

It may not be irrelevant in this place, to notice those
parliamentary proceedings of a judicial nature, which have
superseded, in particular instances, the trial by Jury. Such
are Impeachments, Bills of Pains and Penalties, and Bills of
Attainder. '

In examining the jurisdiction of the Heuse of Lords, in
matters of judicature, it is necessary to bear in mind, that the
Peers formerly sat in two distinct capacities. One, as the as-
semblage of the Lords Spiritual ard temporal of the kingdom :
the other, as the Magnum Consilium, composed of the Lords
in Parliament in conjunction with the Consilium Regis: that,

however

119

howeyer, about the time of Richard II, the authority of the
assistants to the Lords, while sitting in council, dwindled
away. In their first capacity the Peers tried their own
members for treason, misprison of treason, and felony: in
the last, they received petitions upon matters of all kinds,
civil as well as criminal. The exercise of their jurisdiction,
which resulted from the functions of the Magnum Consilium,
was very much curtailed. by several Statutes, particularly
by the Act of 1 Henry IV. From this origin, the present
authority of the Lords, in matters of judicature arose, and its
proper boundaries have since been limited and defined, not
without producing differences between the several branches of
the Legislature, which created serious impediments to their
_ proceedings. In the progress of these disputes, ‘the power of
accusation before the Peers, on the behalf of the King, was
acknowledged.to be illegal, on the occasion of the celebrated
case. of Lord Kimbolton: and the presentment of articles by
Lords’ appellant, was adjudged contrary to law, in the in-
stance of the proceedings commenced by the Earl of Bristol
against the Earl of Clarendon. One kind of judicial proceed-
ing, as ancient, at least, as the time of Edward III, that of
impeachment before the Peers by the Commons, in the charac-
ter .of the Grand Inquest of the nation, has been universally
acknowledged to be unrestrained by any Statute, made to confine
the jurisdiction of the Council or of the House of Lords. The
use, however, of this mode of prosecution was suspended, on
account of the preference given to the proceeding by Bills of
Attainder, or by information in the Star Chamber, during the
reign of Edward IV. and those of the succeeding Princes, till the
middle-of the reign-of James. In later times, several important
circumstances connected with parliamentary impeachments, have
been made the subject of learned enquiry and debate, and. in
some instances the law in respect of them, has been declared
by the Legislature. Of this description is the King’s power of
pardoning, with a view to determine an impeachment; the
necessity of a High Steward being appointed to. preside at the
trial; the revival of an impeachment after .a dissolution of
Parliament; its effect in suspending the proceedings of inferior
Courts upon the same charge; the liability of Commoners to
this species of trial in capital. cases; the right of the Bishops
to vote upon preliminary points; together with many other
questions relative to the order of proceedings ; the commitment
of the person accused; and the power of liberating him on
bail. The events which have given rise to these discussions
are some of the most interesting, that the domestic history of
the Country records.
With respect to Bills of Attainder, and of Pains and Penalties,
it appears, that the right of the Commons to participate in the
judgments

120

judgments of the Lords was negatived, in a solemn manner,
in the reign of Henry IV; a circumstance which forms’ 2
prominent feature in subsequent discussions concerning the
Judicature of Parliament: and there appears to have been ‘no
attempt on the part of the Commons, either during that or
the tWo succeeding reigns, to revive their’ claim. However,
in the reign of Edward IV, it was deemed expedient to submit
the proceedings against the Duke of, Clarence, to the consider-
ation of the House of Commons: and in the time of Richard III,
and the following reigns, there are no judgments by ‘the Lords
alone. Bills of Attainder were multiplied to an appalling extent
in the reign of Henry VIII. That sanguinary monarch was
instructed by Cromwell, Earl of Essex, that an attainder would
stand good in law, although the accused were never allowed
to be heard in vindication of his innocence: a doctrine which
proved as fatal to himself, as it was pernicious to his Country.
Of the manner of which proceeding Sir E. Coke has ° said,
“ Auferat oblivio, si potest, si non, utcunque silentium te-
gate? i. , a
The power of impeachment has been designated by Mr.
Lechmere, as a privilege belonging to the Commons, at least
as valuable as that of giving money, which belongs solely to
them. It has justly been deemed a most important right in
the frame of the English Constitution, for the punishment
of offences of a nature affecting the public interest, in
cases within the jurisdiction of the Courts of Westminster
Hall; but where the description of the offence is such as a
Jury is incompetent to’ decide upon, or where ‘the offender
is, by his station, raised above the apprehension of danger from
a prosecution carried on in the ordinary’ course of justice.
To which some writers have added another ‘ground; where
the delinquency is not punishable according to the law, as
administered in the inferior Courts. It would, indeed, have
been a mockery of a judicial proceeding, to have directed a
Jury to decide upon a misdemeanor in office, depending upon
the propriety of the Partition Treaty, or that of Utrecht; or
to determine what was a libel’ on the Revolution: ‘and the
united accusation of the Commons of England, by their re-
presentatives in Parliament, will appear necessary for dragging
to justice such powerful favorites of ‘royalty as Buckingham,
Strafford, and Danby; or persons of such exalted station as
Lord Bacon and Lord ‘Macclesfield. In all which cases, the
» offences and the offender were within the jurisdiction of the
ordinary Courts, yet the trial: of them by the common method
of a Jury could never be satisfactory to the public. But to
determine an offence to be treason, because the‘ party is im-
eached, which is not a treason declared in’ the Statute of
dward III; or to pronounce that to- be a misdemeanor,

which

121

which no Judge sitting in Westminster Hall would allow to
be one, is surely incompatible with the security which every
individual is entitled to enjoy, so long as he transgresses no
established law. Locke, in his Treatise on Government,
has appropriated a chapter for the purpose of explaining the
limits of that trust, which the people confides to the legislative
authority of a Country. He says, that it cannot assume to
itself a power to rule by extemporary arbitrary decrees; but
is bound to dispense justice, and to decide the rights of the
subject, by promulgated standing laws. The national trust
has been too frequently abused, by new designations of crime
invented by the instigators of those judicial proceedings, in which
the two Houses of Parliament have concurred: but if a similar
course were ever again to be pursued, it is to be hoped that
ourselves and our posterity will evince, by a temperate but in-
flexible resistance, the truth of the opiion which the great
Lord Bacon formed of the English people, that they continue
to have deeply engraven in their hearts the sentiment,
“ Nolumus leges Anglie mutari.”—In the application of this
transcendent remedy for the evils occasioned by flagrant miscon-
duct in the State, it will always be recollected that the hardships
which the mode of trial by impeachment imposes on the in-
dividual accused, are numerous and severe. Not to dwell
upon the advantages which are allowed to the conductors
of the prosecution, by the course of proceedings, greater
than those which are permitted in ordinary cases; it is no
trivial deprivation, if the prisoner be a commoner, to be
obliged to relinquish his right of challenge, and to await the
issue of a trial in which his Judges are not his Peers. Nei-
ther ought it to be forgotten that the proceeding by impeachment
was formerly, in some cases, imperatively called for, where the
necessity of it, would not, in the present day, be thought so
indispensable, from the independent character which Judges
have assumed since the alteration of their patents: unless,
indeed, the practice of raising Judges to higher stations upon
the Bench, be considered as affording to the Crown a means
of influencing their minds almost as objectionable as the ancient
power of displacing them. The history of impeachments in
this Country, and the principles of human nature, may likewise
induce an opinion, that in judicial matters, a numerous assembly,
of which many of the members are closely connected by domestic
or political ties, is a tribunal very incompetent for the formation
of an unbiassed and dispassionate judgment.

When the same reasons exist for the interference of Parliament,
as would justify the proceeding by impeachment ; but the ac-
cused flies from justice, and does not surrender himself by a
time appointed ; or is in actual rebellion, and in direct opposition

to all methods of trial, and in defiance of every tribunal of ne
Bills

_ 499

ww

Bills of Attainder or of Pains and Penalties, have been not unfre-
quently resorted to. On the first ground, the Bill which passed
against Lord Clarendon, and that which was preparing against
Lord Danby during his concealment, have been defended. On
the latter principle, the attainders of Monmouth and of the Preten-
der, may be justified. Several cases will be found in Mr. Hat-
sell’s collections, where the extraordinary emergence of the
occasion, or other public considerations may be thought to
point out the proceeding by Bill, as a -preferable course to that
of a prosecution by the Commons. But where the remedy by
impeachment is available, Bills of Attainder and of Pains and
Penalties, will be regarded with jealousy, on account of the
dangerous licence which the Houses of Parliament have per-
mitted to themselves, from the mixed and indefinite nature of
their legislative and judicial capacities when united. The cases
of Lord Strafford and Sir J. Fenwick, deserve particular attention,
because these precedents have been defended by arguments replete
with constitutional learning and ingenuity of talent : but the im-
partial reader, after a mature reflection upon them, will probably
conclude by expressing his reprobation of the principles on
which they proceeded; subversive as they are of all settled
notions respecting the nature of offences, and of the evidence
by which criminal charges ought to be established. The protest
of the Lords, upon the occasion of the Bill for inflicting penalties
upon Bishop Atterbury, will be read for the valuable opinions
it contains upon this branch of Constitutional Law: a subject of
paramount importance, in the opinion of every person who as-
sents to the observation of Sir E. Coke, that it is the first duty
of Parliament, to set an example of justice to inferior Courts.

123

CHAP. XXXIII.

Prince. I am-convineed that the Laws of Eng-
land eminently excel, beyond the laws of all other
countries, in the case you have been now endeavour-
ing to explain; and yet I have heard that some
of my ancestors, kings of England, have been so far
from being pleased with those Jaws, that they have
been industrious to introduce, and make the Civil
Laws a part of the Constitution, in prejudice of the
Common Law; this makes me wonder what they
could intend by such behaviour’.

* Selden, in his Dissertation upon Fleta, asks, what Kings
of England ever desired to introduce the laws of Rome into
this Country ; and he mentions, as evincing a contrary disposi-
tion in our Sovereigns, the edict of Stephen against the laws of
Italy, and a protestation in the Parliament of the 11th
Richard II, by the King and Lords, that the Imperial Laws
had no. force in England: Coke, on the other hand, enlarges
on the attempts to bring in the Civil Law, in the reign of
Henry VI. (3 Inst. 35.) The subject is particularly considered
in Hurd’s Dialogues upon the Constitution, and in Sullivan’s
Lectures. These writers mention the protection afforded to the
Civil Law by Edward I, who brought over to England the
celebrated Accursius, and established him in a school at Oxford.
They advert to the open patronage of the Civil Law, and the
profession of its principles by Richard II. And they notice
the institution of professorships of Civil Law in the Universities,
and the observation of it, in the proceedings of those Courts
which were immediately under the King’s influence, as indicative
of the sense, not of this or that King, but of a whole succession
of Princes. At a later period, it was one of the articles prepared
against Cardinal Wolsey, that he endeavoured to subvert, “ Anti-
quissimas leges hujus regni, universumque hoc regnum legibus
Imperialibus subjicere.” Laud obtained of Charles I, that the

Masters

124

Masters of the Requests should be all Doctors of the Civil Law,
and also eight Masters of Chancery. (Straff. Lett. and Disp.
Vol. I. p. 176. Clarendon’s History, lib. iv.) A policy which is ex-
plained by the complaints which Strafford used to indulge against
the common lawyers, that they monopolized all to be governed
by their year books ; and that they were in the habit of hanging
their noses over the flowers of the Crown, and of blowing and
snuffing upon them, till they had taken both scent and beauty
off them. (Strafford’s Lett. and Disp. Vol. I. p. 130, 201.) The
known partiality of King James for the professors of the Civil
Law, is supposed to have been the cause of his extraordinary
admiration of the play of Ignoramus, composed in ridicule of the
practice of the Common Law. (The Case and Argument against
Sir Ignoramus, by Calls; and see the References in Hawkins’s
Ignoramus.)

125

CHAP. XXXIV.

ae Se

Chancellor. You would cease to wonder, my
Prince, if you would please seriously to consider
the nature and occasion of the attempt. I have
already given you to understand that there is a very
noted sentence, a favourite maxim, or’ rule in the
Civil Law, that, That which pleases the Prince
has the effect of a Law*. The Laws of England

* « Quod Principi placet, legis habet vigorem.” The entire
passage as ‘eimdlnrot from the Institutes of Justinian by Gibbon,
is this: “ The pleasure of the Emperor has the vigor and effect
of the law, since the Roman people, by the Royal Law, have
transferred to the Prince the full extent of their own power
and sovereignty.” A fragment in copper of the Lex Regia which
was passed by the Roman people in favor of Vespasian has been
preserved ; but there cannot be collected from it any expressions
to warrant the law in the extraordinary terms in which it is stated
in the Institute. (Gruter’s Inscriptions.) The passage in the text is
attributed, in the compilation of Justinian, to the lawyer Ulpian.
But the avowal which has been made, by the persons engaged
in the formation of that great work, destroys the credit to be
attached to the authorities they cite. “ Nomina quidem veteribus
servavimus, legum autem veritatem nostram fecimus: Itaque si
quid erat in illis seditiosum, multa autem talia erant ibi reposita,
hoc decisum est et definitum.” The manner in which the pas-
sage from the Roman Law in the text is cited and explained
by our ancient writers, Bracton, Fleta and Thornton, is the most
singular circumstance contained in their works. They have had
recourse to an absolute forgery upon the Institutes of Justinian,
for the purpose of giving an interpretation to it consistent with
the existence of rational liberty. Selden expresses himself over-
whelmed with astonishment at the method in which they have
avoided its obvious import, at the same time treating it as a part
of the Law of England. (Diss. ad Fletam. Hurd’s Dialogues. on
the Constitution.) It is to be observed, that some of the most
distinguished Commentators of the Civil Law, have considered,
that the terms ‘of the Lex Regia did :not -confer an absolute

authority

126

admit of no such maxim, or any thing like it. A
King of Englaud does not bear such a sway over
his subjects, as a King merely, but in a mixed political
capacity : he is obliged by his Coronation Oath” to

authority on the Prince. (Heineccius’s see lib. i. Tit. 2.
c. 66. Duck de ortu et progressu juris civilis, lib. i. c. 3. —Hal-
lifax’s Introduction to his Analysis. Taylor’s Civil Law, p. 140.)
But that the jealousy entertained of this law by Fortescue
was well founded, is confirmed by some particulars ‘which
Lord Lyttleton relates in his History of Henry II, respeet-
ing a controversy on the construction to be given to the
assage in the text, which occurred in the dominions of the
mperor Frederick Barbarossa: and which terminated in a de-
claration, that to entertain doubts ef the Roman Emperor being
the absolute master of the whole world and of all the goods of
individuals, so that he might dispose of them at his pleasure,
was a heresy.
» An Oath has been required from the Sovereigns of this Country,
at their Coronation, from the earliest times to which our histori-
eal information extends. The form of the Coronation Oath ad-
ministered to a Saxon King is perserved.: (Hickes’s Institutiones
Grammatice Anglosazonice:) The Conqueror appears, to have
taken oaths on two several occasions; obliging him to maintain
the ancient laws of the Country. .(Hoveden Pars Priors pe 258,
Malmesb. de Quest. Pontif. p. 154 6. Mat. Paris in vité Freth.
Abbatis, fol. 48; and see for the more ancient Oaths, - Mirror of
Justices, c. 1. Sect. 2. Bracton, lib. tii. c. 9. The Oath in Bracton
implies an Obligation not wantonly to molest Foreign Nations, Barr.
on 2 Edw. III. n.) King Henry VIII, corrected the Coronation
_ Oath with his own hand. (Book of Oaths, a.v. 1689.) In the
time of Charles I, a serious charge was made against the King
and Laud for altering the Oath by striking out the words ‘ quas
vulgus elegerit,” and inserting these “ agreeable to the King’s
prerogative.” (Heylin’s Cyprianus Anglicus, p. 141. et seq. Milton's
{conoclastes, §.6. Defensio Pro. Pop. Angl. c. 8. Prynne’s Can
terbury’s Doom, p. 69, Whitelock’s Mem. 84 6. Brog: Brit. Arts
Laud. And see the arguments collected, Harris's Life of Charles I;
p- 198,-n.) A similar accusation has been brought : against
James II. (Sir R. Atkyns’s Tracts, p. 418.) The Coronation
Oath was changed at the Revolution, because, as the Statute
alleges, it had been framed in doubtful words and expressions;
with relation to ancient laws and constitutions at that timé un-
known. (St. 1 W. and M. c.6; and see Debate on Coronation
Oath, Vol. V. Parl. Hist.)\—-Some very important questions have
arisen réspecting the interpretation of several passages in the
Coronation Oath. As, in the ‘time of Charles I, whether the
King was bound to give his assent to whatever laws ite Par-
iament

127

the observance of the laws, which some of our kings
have not been well able to digest, because thereby
they are deprived of that free exercise of dominion

liament had previously agreed on: a discussion which embraced
the constitutional topic of the independency of the respective
branches of the Legislature. (Clarendon’s History, Book V,
p- 452, 483. May, p. 128. Oldcastle’s Remarks, Letter7. Burke's
Thoughts on the present Discontents. Debates, Tem. Will. III.
respecting the Exercise of the Veto. Parl. Hist. Vol. V.) Another
point respecting the construction of the Coronation Oath was
canvassed in the reign of the same King ; whether the Sovereign
was bound by the terms of his Oath to resist any change in the
established religion, although sanctioned by the national consent,
and approved of by his own judgment. (2 Neale’s History of the
Puritans, p. 229, et. seq. the Argument between Charles I, and
Henderson upon the Subject.) A difficulty was felt by William III,
upon the same ground, who conceived that the language of the
Oath, in the terms in which it was framed, was inconsistent
with his views of religious toleration. In the present day
it has been contended, that a King of England would be
prohibited by his Coronation Oath, from giving an ear to the
claims of the Roman Catholics, although his own conviction
and the voice of the nation, conspired to advocate theni—Such
scruples seem to indicate in the minds of the persons enter-
taining them the most derogatory conceptions of the Divine
Attributes: but a king, who honestly felt himself under the
influence of these bigotted impressions, would be solicitous to
abdicate his throne, rather than they should stand an impediment
to the completion of the vows of his people. — Foster, in his
discourse upon High Treason, censures the expressions of some
writers of eminence, who have spoken of the ceremony of
Coronation as a bare notification of the descent of the Crown.
(Foster, p..189. 3 Inst. 7..1 Hale, P. C. 61. 101.) In ancient
times it was considered a solemnity of great importance: Not
to dwell upon the extraordinary proceedings against Thorpe
in the reign of Edward III, who was condemned to be hanged
because he was found “ Sacramentum Domini Regis fregisse ;”
(3 Inst. 223.) Several facts are collected by Mr. Hallam from
early English History, tending to shew that the ceremony
of the Coronation gave a right, as it were, by seisin, to the
throne. The taking of the Coronation Oath does, in a slight
degree, countenance the hypothesis of an original compact.
(See this Subject considered in Mr. Bentham’s Fragment on Go-
vernment, p. 42. et. seq. For the Forms of the Coronation Oaths at
different Periods, Matt. Paris, p.153. Rapin, Edw. II. Rich. LI.
Report of the Lords’ Committees respecting the Peerage, p. 230.
Prynne’s Signal Loyalty. 1 Bl. Comm. p. 235 n. The Book
of Oaths, published a.v. 1689. Strutt’s Antiq. Vol. II. p. 55.
et seq-)

128

over their subjects, in that full extensive manner, as
those kings have, who preside and govern by an
absolute regal power; who, in pursuance of the
laws of their respective kingdoms, in particular, the
Civil Law, and of the aforesaid maxim, govern their
subjects, change laws, enact new ones, inflict punish-
ments, and impose taxes, at their mere will and plea-
sure, and determine suits at Jaw in such manner,
when, and as they think fit. For which reason
your ancestors endeavoured to shake off this political
frame of government, in order to exercise the same
absolute regal dominion too over their subjects, or
rather to be at their full swing to act as they list:
not considering, that the power of both kings is
really, and in effect equal, as is set forth in my
aforesaid treatise, de Natura Legis Nature, viz.
that it is not a restraint, but rather a liberty to go-
vern a people by the just regularity of a political
government, or rather right reason ; that it is the
greatest security both to king and people, and
takes off no inconsiderable part of his royal care.
That this may the better appear, you will please to
consult the experience you have had of both kinds
of government; to begin with the regal, such as
the king of France exercises at present over his
subjects; and, in the next place, you will please
to consider the effect of that regal political govern-
ment which kings of England exercise over their
subjects.

129

CHAP. XXXV.

You may remember, most worthy Prince, in
what a condition you observed the villages and
towns of France to be, during the time you sojourn-
ed there. Though they were well supplied with
all the fruits of the earth, yet they were so much
oppressed. by the king’s troops, and their horses ;
that you could scarce be accommodated, in your
travels, not even in the great towns: where, as
you were informed by the inhabitants, the soldiers,
though quartered in the. same village a month or
two, yet they neither did nor would pay any thing
for themselves or horses; and, what is still worse,
the inhabitants of the villages and towns where
they came, were forced to provide for them gratis,
wines, flesh, and whatever else they had occasion
for; and if they did not like what they found, the
inhabitants were obliged to supply them with better
from the neighbouring villages: upon any non-
compliance, the soldiers treated them at such a
barbarous rate, that they were quickly necessitated
to gratify them. When provisions, fuel and horse
meat fell short in one village, they marched away
full speed to the next; wasting it in like manner.
They usurp and claim the same privilege and custom
not to pay a penny for necessaries, either for them-
selves or women (whom they always carry with
them in great numbers) such as shoes, stockings,
and other wearing apparel, even to the smallest
trifle of a lace, or point; all the inhabitants, where-

I

130

ever the soldiers quarter, are liable to this cruel
oppressive treatment: it is the same throughout
all the villages and towns in the kingdom, which
are not walled. ‘There is not any the least village,
but what is exposed to the calamity, and once or
twice in the year is sure to be plundered in this
vexatious manner. Further, the king of France
does not permit any one to use salt, but what is
bought of himself, at his own arbitrary price: and,
if any poor person would rather choose to eat his
meat. without salt, than to buy it at such an ex-
orbitant dear rate; he is notwithstanding com-
pellable to provide himself with salt, upon the
terms aforesaid, proportionably to what shall be
adjudged sufficient to subsist the number of persons
he has in family: besides all this, the inhabitants
of France give every year to their king the fourth
part of all their wines, the growth of that year,
every vintner gives the fourth penny of what he
makes of his wimes by sale. And all the towns and
boroughs pay to the king yearly, great sums of
money, which are assessed upon them for the
expences of his men at arms. So that the king’s
troops which are always considerable, are subsisted
and paid yearly by those common people, who live
in the villages, boroughs and cities. Another griev-
ance is, every village constantly finds and maintains
two cross-bow-men at the least; some find more
well arrayed in all their accoutrements, to serve
the king in his wars, as often as he pleaseth to
call them out; which is frequently done. Without
any consideration had of these things, other very
heavy taxes are assessed yearly upon every village
within the kingdom for the king’s service; neither
is there ever any intermission or abatement of taxes.
Exposed to these and other calamities, the peasants
live in great hardship and misery. Their constant
drink is water, neither do they taste, throughout the
year, any other liquor; unless upon some extraordi-

131

nary times, or festival days. Their clothing con-
sists of frocks, or little short jerkins made of canvass
no better'than common sackcloth ; they do not wear
any woollens, except of the coarsest sort; and that
only in the garment under their frocks; nor do they
wear any trowse, but from the knees upward ; their
legs being exposed and naked. The women go
barefoot, except on holidays: they do not eat flesh,
unless it be the fat of bacon, and that in very small
quantities, with which they make a soup: of other
_ sorts, either boiled or roasted, they do not so much
as taste, unless it be of the inwards and offals of
sheep and bullocks, and the like, which are killed
for the use of the better sort of people, and the
merchants : for whom also quails, partridges, hares,
and the like, are reserved, upon pain of the gallies :
as for their poultry, the soldiers consume them,
so that scarce the eggs, slight as they are, are in-
dulged them by way of a dainty.. And if it happen
that a man is observed to thrive in the world, and
become rich, he is presently assessed to the king’s
tax, proportionably more than his poorer neighbours,
whereby he is soon reduced to a level with the rest.
This, or I am very much mistaken, is the present
state and condition of the peasantry of France. The
nobility and gentry are not so much burthened with
taxes. But if any one of them be impeached for
a state-crime, though by his known enemy, it is not
usual to convene him before the ordinary judge,
but he is very often examined in the king’s own apart-
ment, or some such private place ; sometimes only by
the king’s pursuivants and messengers: as soon as
the king, upon such information, shall adjudge him
to be guilty, he is never more heard of; but
immediately, without any other formal process, the
person so accused and adjudged guilty is put into
a sack, and by night thrown into the river by the
officers of the provost-marshal, and there drowned :
in which summary way, you have heard of more

12

132

put to death, than by any legal process. But still
according to the Civil Law, “what pleases the
prince has the effect of a law.” Other things of
a like irregular nature, or even worse, are well
known to you, during your abode in France, and
the adjacent countries; acted in the most detest-
able barbarous manner, under no colour or pretext
of law than what I have already declared. To be
particular would draw out our discourse into too
great a length. Now it remains to consider what
effect that political mixed government, which prevails
in England, has, which some of your progenitors
have endeavoured to abrogate, and instead thereof
to introduce the Civil Law; that, from the con-.
sideration of both, you may certainly determine
with yourself which is the more éligible, since (as
is above-mentioned) the philosopher says, “that
opposites laid one by the other, do more certainly
appear ;” or, as more to our present argument,
“‘happinesses by their contraries are best illustrated*.””

* The text will not fail to recall to the reader’s recollection,
the remarkable speech of Sir Dudley Carleton, which incensed
the House of Commons, in the reign of Charles I. ‘ That in
other countries, particularly in France, they had formerly
parliaments, as we have; but when their parliamentary liberty
was turned into tumultuary licence, and their kings found how
these councils endeavoured to curb them; they took away
and abolished those parliaments; and now the common people
wanting good food, looked more like ghosts than men, and went
in canvass clothes, and wooden shoes:” similar descriptions of
the tyrannical nature of the ancient government of France, are
to be met with in many of the early writers of this Country,
and in the speeches in Parliament. (Sir 7’. More, Preface to the
Utopia “stipendariisin pace quoque, st pax ista est, oppletaatqueobsessa
militibus.” Aylmer’s Harborowe for faithful Subjects, the Marginal
Reference, “ How the French Pezantes be handled.” ‘Amongst other
grievances, they pay till their bones rattle in their skin.” Hayward’s
Tafe of Hen. IV. p. 250. D’Ewes, p. 169. Harl. Misc. Vol. V.
p- 252.) These accounts are important, with reference to the
question upon which Mr. Hume and Mr. Brodie are at issue,
the comparative liberty enjoyed by England, and the other
nations of Europe, antecedently to the reign of the Stuarts.
The description given of France by Fortescue, is confirmed and

133

illustrated by the writings of the pc pg ala! historian Comines.
Louis XI, who was then king, is said to have delivered the Crown
of France out of wardship. Voltaire observes, that he was the first
absolute monarch in Europe, after the decline of the House of
Charlemagne: the feudal government had been destroyed about
the time, when his predecessor Charles VII. established. his
power, by the expulsion of the English, the re-union of several
Important provinces to the Crown, and the establishment of
perpetual taxes. It is certain, that the example afforded by the
arbitrary government of France, and particularly the gabelle
of salt, has been cited with a view to sanction, by such a pre-
cedent, the adoption of similar courses in this Country. (Strafford’s
Lett.and Disp. Vol.1. p. 93, 193: Sir H. Wooton’s Speech. Debates
on Impositions. Tem. Jac. I.) Whilst the blessings of the English
Constitution, as manifested in the prosperity of the people,
have been the theme of admiration abroad, not only in the
present day, but so early as the reign of Henry VI. (Comunes,
lib. v. ¢. 1. lib. v. c. 18.)

134

CHAP XX AVE
——— ‘

In England no one takes up his abode in another
man’s house, without leave of the owner first had*:
unless it be in public inns”; and there he is obliged
to discharge his reckoning, and make full satisfaction,
for what accommodations he has had, ere he be per-
mitted to depart. Neither is it lawful to take away
another man’s goods without the consent of the
proprietor, or being liable to be called to an account
for it. No man is concluded, but that he may pro-
vide himself with salt, and other necessaries for his
family, when, how and where he pleases. Indeed
the king, by his purveyors‘, may take for his own

* The summary proceeding in case of forcible entries which
had been appointed by a Statute of Richard II, was enlarged
and rendered more effectual in the reign of Henry VI. The
Paston Letters, written at this period, shew the manner in which
- private houses were sometimes fortified to oppose attacks, ‘and
the alarming nature of the aggressions made upon the dwell-
ings and property of individuals. (Paston Letters, Vol. III.
Letter 77. Vol. 1V, Letters 58, 75, 93, 94, 95, 96, 97, 100,
103, 104, 106. Vol. V, Letters 65, 167.)

> In the time of Henry VI, it seems not to have been a
settled point, whether an action might be maintained against an
innkeeper for refusing a lodging; and it appears to have been
the better opinion, that the proper remedy was to complain
to the ruler of the vill, or the constables of the place. (Year —
Book, 39 Hen. VI, p.18. 5 Edw. IV, p. 2.)

° Burke, in his speech upon economical reform, has given
a lively description of the ancient practice of purveyance.
And a variety of interesting particulars respecting it are col-
lected in the Archeologia of the Antiquarian Society. (4rcheol.
Antig. Soc. Vol. VIII; and see Barrington on 28 Edw. J,

10 Edw.

~~. —h

135

use necessaries for his household, at a reasonable
price, to be assessed at the discretion of the con-
stables of the place, whether the owners will or not:
but the king is obliged by the laws to make present
payment, or at a day to be fixed by the great officers |
of the king’s household. The king cannot despoil
the subject, without making ample satisfaction for

10 Edw. III, 36 Edw. II. Ellis’s Original Letters, Vol. I,
Pp 239. On the Impressment of Artificers, Hallam’s Middle Ages,

ol. II, p. 358. Of Choristers, Jehu Webb’s Case, 8 Rep.) The
abuses to which the system of purveyance gave rise in this
Country are eloquently set forth by Lord Bacon, in deliver-
ing an address, presented to King James from the House
of Commons. He says, that there was no grievance in
the kingdom so general, so continual, so sensible, so bitter
upon the common subject, as that. (Bacon’s Works, Vol. II,
Pp- 150; and see respecting the Exercise of the Prerogative of
Purveyance, by the Tudors, Hume, Note EE to Vol. V1. . Brodie’s
British Empire, Vol. 1, p.297.) The restraining of the excesses
of the purveyors, was a subject that much engaged the attention
of the Legislature in former times. Coke mentions, that no less
than forty-eight Statutes have been passed relative to this prac-
tice. _ (2 Inst. 224, 33, 35, 546, what is said concerning the Book
entitled ‘Speculum Regis,” ‘written against Purveyors, Tem.
Edw. IIT, 3 Inst. c. 24, on Felony in Purveyors. 4 Inst. c. 29,
the Court of Purveyors. St. 36 Edw. III. that the odious Name
of Purveyor should be changed to that of Achator. Stat. 1 Henry VI,
c. 2. for Proclaiming the Laws of Purveyance Four Times a Year.)
Coke relates, that one of Queen Elizabeth’s purveyors was hang-
ed for offending against these laws: and some arbitrary pro-
ceedings respecting purveyance, form the substance of one of the
charges preferred against Wolsey. The difficulty of procuring
provisions, arising from the want of regular and well supplied
markets, was often productive of serious inconveniences: The
collection of Letters recently published by Mr. Ellis, contains
some curious facts in illustration of this: provisions are men-
tioned to have been sent for to Flanders, in consequence of
their having been bought up at home, in expectation of a royal
progress. (Ellis’s Original Letters, Vol. Il. p. 271.) Before
the extinction of the practice of purveyance, compositions in
lieu of it had been stipulated for by pens £6 oo Counties.
Man ments are urged against the policy o ishing it,
Nwhicky, in, the present da f wa, afford amusement to the reader,
in a book written by Fabian Phillipps, entitled “The An-
tiquity, Legality, Reason, Duty, and Necessity of Purveyance
and Pre-emption.”

136

the same‘: He. cannot by himself, or. his ministry;
lay taxes, subsidies, or any imposition, of what kind
soever, upon the subject*; he cannot alter the laws,
or make new ones, without the express consent of
the whole kingdom in Parliament assembled: every in-
habitant is at his liberty fully to use and enjoy what-
ever his farm produceth, the fruits of the earth, the
increase of his flock, and the like: all the improve-
ments he makes, whether by his own proper industry,
or of those he retains in his service, are his own to
use and enjoy without the lett, interruption, or denial
of any: if he be in any wise injured, or oppressed,
he shall have his amends and satisfaction against the
party offending: hence it is, that the inhabitants

* Sir E. Coke, in that part of his Institutes in which he
treats of the Courts of the Forests, says, that no King of England
could legally have raised a free chase, park, or warren, in any
of the grounds of his subjects; and in confirmation of this he
mentions a remarkable indenture made between Henry VIII,
and certain freeholders and copyholders, for the purpose of
enabling him to create Hampton Court Chase, and yet, as
Coke observes, Henry VIII. did stand as much upon his
prerogative as any King of England ever did. (4 Inst. 301.)
Agreeable to the same opinion is the certificate of Popham,
Chief Justice, and all the Justices of England, respecting the
prerogative of the King in digging for saltpetre. (3 Inst. 84.)
Lord J. Russell has related two remarkable instances, in which-
poor men, with law on their side, overcame the pretensions of
a Princess of the Blood, and of the Heir Apparent to the Throne.
(Treatise on the Constitution, Append. and see Lord Chatham's
Speech on General Warrants, a.p. 1764.) The resistance of:
Hampden, a private gentleman, to an imposition of twenty
shillings, has rendered the tax of ship-money, “a name of lasting
sound in the history of this Country.”

© It appears from Fortescue’s Book on “ Absolute and Lim-
ited Monarchy,” that in the time of Edward IV, the revenue
of the Crown, exclusive of parliamentary supplies, was equal
to a fifth of the lay property of the kingdom. Respecting the
ancient revenues of our Kings, see a Tract by Sir R. Cotton
upon the subject: and the second Book of Lyttleton’s Henry II,
with the Notes: also the voluminous collections of Madox in his
Treatise on the Exchequer. Fortescue does not state that our
Kings were restricted from aliening their revenue: Lord Holt,
in his. argument on the Bankers’ Case, draws an inference from:
this circumstance in support of Royal Grants.

137

are rich in gold, silver, and in all the necessaries
and conveniences of life. They drink no water,
unless at certain times, upon a religious score, and
by way of doing penance. They are fed, in great
abundance, with all sorts of flesh and fish, of which
they have plenty everywhere; they are clothed
throughout in good woollens; their bedding and
other furniture in their houses: are of wool, and
that in great store: they are also well. provided
with all other sorts of household goods and necessary:
implements for husbandry: every one, according
to his rank, hath all things which conduce to make
life easy and happy’. They are not sued at law

In a passage of Hollingshead, in the discourse prefixed to
his History, and which some ascribe to Harrison, speaking of
the increase of luxury, it is said, that old men have remarked
three things marvelously altered in England within their re-
membrance ; first, in the multitude of chimneys; secondly, the
amendment of lodging ; thirdly, the exchange of wooden platters
into pewter, and wooden spoons into silver or tin. The greater
part of the buildings in the towns of England are mentioned
by the same writer to consist only of timber, cast over with

; commonly of a white, red, or blue color: the houses of
the nobility, which were newly erected, were usually of brick
or stone: and glass windows were beginning to be used in
England. The subject in the text derives considerable illustra-
tion from the interesting poem entitled, Pierce Ploughman’s
Vision, written in the reign of Edward III. (See particularly
Pierce Ploughman’s Address to Hunger. And further as to the
Domestic Economy of the English People, in Early Times, Henry,
Vol..V. c. 7. Hallam, Vol. II. c¢. 9. Strutt’s Antiquities. Paston
Letters, Passim. Ellis’s Specimens of the early English Poets, c. 13.
“On the Private Life of the Enghsh in the Reign of Hen. VI.”)
Mr. Brodie has endeavoured to account for the decay of the
ancient provincial towns in England, from the diminution of
the numbers of small farmers and agriculturalists, by reason
of the system of inclosures; by the demands of which descrip-
tion of persons he supposes the manufacturers in the pro-
vincial towns to have been principally supported: it appears,
however, that till a late period, the common people were much
in the habit of manufacturing their own clothes. (Brodie’s
Introduction, p. 36. Eden on the Poor, Vol. 1, p. 109, 121.) It
was not till the middle of the seventeenth century, that cottons
were manufactured in this Country, though silks had been

introduced

138

but before the ordinary judge, where they are
treated with mercy and justice, according to the
Jaws of the land; neither are they impleaded in
point of property, or arraigned for any capital
crime, how heinous soever, but before the king’s
judges, and according to the laws of the land.
These are the advantages consequent from that po-
litical mixed government which obtains in England:
from hence it is plain, what the effects of that law
are in practice, which some of your ancestors, kings
of England, have endeavoured to abrogate: the
effects of that other law are no less apparent, which
they so zealously endeavoured to introduce among
us; so that you may easily distinguish them by
their comparative advantages ; what then could in-
duce those kings to endeavour such an alteration,
but only ambition, luxury, and impotent passion,
which they preferred to the good of the State. You

introduced in the reign of Henry II, and furs were in common
use in the time of Edward I. (Stérutt’s Antiq. Vol. II, p. 83.
3 Inst. 199. On the Use of Furs, Barrington on 10 Edw. LIT.
On the Laws against the Waste of Gold and Silver in Em-
broidery, Henry, Vol. V, p. 456; and upon Ancient Dresses in
England, see Peck’s “ Desiderata Curiosa.”) With respect to the
agricultural instruments mentioned in the text: The Norman
plough, without wheels, the handle of which was held in one
hand, whilst the other directed a plough-staff to break the clods,
continued in use till the seventeenth century: the harrow was
known to the Normans, as appears from the Bayeux tapestry.
(Strutt’s Antiq. Vol. II. p. 12.) Salt is particularly mentioned
by Fortescue in this Chapter: a circumstance which conveys
information both in respect of the manurance of the soil,
and the food of the inhabitants. The first pits of fossil or
rock salt known in this Country, were accidentally discovered
in Cheshire, so late as a.p. 1670, at the very spot where
Domesday records some brine-springs. Henry VI. invited
over some manufacturers of salt from Zealand. The monopoly
of this article was one of those which Elizabeth recalled: in
announcing which circumstance to the Parliament, Sir R. Cecil
thus quaintly expressed himself, “That you may eat your meat
more savory than you have done, every man shall have salt
as good and cheap as he can buy it, or make it freely, without
danger of that patent which shall be presently revoked.”
(Townsend’s Journals, p. 150.)

139

will please to consider in the next place, my good
Prince, some other matters which will follow to be
treated of ®.

s Sir E. Coke, in his Commentary on the Statute of Marle-
bridge, says, the Judges are not didges of Chambers, but of
Courts; neither are causes to be heard upon petitions or
suggestions, but in curia Domini Regis. It is alleged against
Empson and Dudley, that they used to convent men before
themselves, at their private houses: (Bacon’s Henry VII.)
A similar accusation forms one of the articles against Finch,
in his impeachment: Lord Falkland, who presented the
charge to the House of Lords, imputed to him, that he brought
all law from his Majesty’s Courts into his Majesty’s breast.
(Parl. Hist. Vol. II.) The right of the subject to be tried
by the ordinary tribunals, is asserted in very forcible language,
by declarations of the Legislature, on the occasions of reversing
the Attainders against the Earl of Kent, in the reign of
Edward III, and against the Earl of Lancaster, in the reign of
Edward IV, both of whom were executed according to Martial
Law in the time of peace. (Hale’s Hist. of the Common Law,
p- 42. 3 Inst. p. 52.) Instances, however, are to be found of
several flagrant violations of this privilege by some of our
Sovereigns. (Case of the Earl of Kent, supra. The Proceed-
ings against Gloucester at Nottingham Castle, in the presence of
Richard II. The Execution of a Cutpurse, by order of James at
Newark; Peyton’s House of Stuart. And examine the Imputations
on the Conduct of Charles I, in respect of his Treatment of the
Earl of Loudon, 2 Brodie 515.) It has been thought, that by
the twenty-ninth Chapter of Magna Charta, the King is pro-
hibited from erecting any new criminal Court. (Sullivan's
Lectures, p. 377.) and Sir E. Coke evinces a great jealousy
of all new commissions, conferring powers of judicature, which
are not sanctioned by Parliament. (3 Inst. 165, 4 Inst. 162.)
There is an interesting case in his Reports, in which he tells
us, that in conjunction with the rest of the Judges, he refused
to sit upon the High Commission, in the time of James,
notwithstanding the many endeavours, made by the Lord
Treasurer to persuade him. The Judges of the land, have often
interposed a salutary check to the proceedings of those Courts,
which have been founded on principles incongruous with the Com-
mon Law. (4 Inst. 332, 333. Strafford’s Lett. and Disp. p. 130,
155, 205, 173. Brodie’s Introduction, p. 199, 200. Whitelock’s Memo-
rials, p. 15.) But such institutions have too frequently been deem-
ed a necessary support to arbitrary power; until the discontent
excited. by them has spread so widely throughout the nation, as
ultimately to effect the subversion of the Government, by gue

they

140

they were upheld. (See Observations on the Star Chamber, and
other Summary Tribunals, in the Minutes of Lord Somers’ Speech
on the Bill for Abolishing the Privy Council’ of Scotland, .
Hardw. St. Papers, Vol. Il. p. 473. On the Court at York,
Rushworth, Vol. Il. p. 158, Life of Clarendon, 4 Inst. ¢. 49.
On the Court of the Marches, Bacon’s Works, Vol. IV. Con-
cerning Cromwell's High Court of Justice. The erences
in Grey's Hudibras, Part II.' Canto 2. 1. 325, Harris’s Life
of Cromwell, p. 449, “ Crommell’s New Slaughterhouse,’ Walker
on Independency, Part III. On the Ecclesiastical Commission
of James II, Clarke’s Stuart Papers, Vol. Il. p. 88. et seq.
Lord Lonsdale’s Memoirs, Sheffield, Duke of Buckingham’s Works,
a Letter stating the Ground for his consenting to sit as a Member
of the High Commission. Sir R. Atkyns’s Tracts. Cases of Mag-
dalene College, and Cambridge University, St. Tr.)

141

CHAP. XXXVIT.

Saust Thomas, in the book which he addresses
to the king of Cyprus (de regimine principum)
says, “that a king is given for the sake of the
kingdom, and not a kmgdom for the sake of the
king.” Consequently all kingly power ought to
be aplied for, and to center in the good of the
Kingdom or State: which, in effect, consists in
the defence of the subject from the incursions of
other nations, and in the protection of their lives
and properties from injuries and violence as to
one another. A king who cannot come up to this
character, is to be looked upon as weak : but if,
through his own passions, poverty, or want of
economy, he be in so distressed a condition, that
he cannot keep his hands off from seizing on his
subjects’ property ; by means whereof he so impo-
verishes them, that their estates are not sufficient
to maintain both: in how much a more zwmpotent
despicable condition may we justly reckon such
a prince to be, than if he were barely unable to
defend them against the injuries of others? Such
a prince, indeed, is not only to be called weak,
but weakness itself; and is far from being a proper
head of a free people, whilst he labours under
such pressures and obligations. On the other
hand, he may well be esteemed a free and powerful
prince, who can protect his subjects, against
a foreign force as against one another: their pro-
perties are safe with respect to their neighbours

142

and fellow-citizens, not liable to the oppression or
depredation of any one: not even though the prince
himself should have passions and occasions of his
own to gratify: for who can be more powerful
or free than that prince who cannot only bring
others within due bounds, but can also get the better
of his own passions? which that prince can, and
always does, who governs his people in the political
way. So that experience sufficiently shews you,
my Prince, that those ancestors of yours, who were
so much set upon abolishing the political form of
government, had they been able to have compassed
it, would not only have been disappointed of their
aim and wish of enlarging their power thereby ;
but would, by this means, have exposed both them-
selves and the whole kingdom to far greater mischief
and more eminent danger. Nevertheless, what we
have shewn from the experience of the ill effects of
a despotic government, which may seem to check
and Jessen the power of an absolute prince, do in
reality rather proceed from a want of due care; and
from misbehaviour, than from any defect in that law by
which he governs. And therefore the regal power or
dignity itself is not hereby lessened: since the power,
whether of an absolute prince, or of one limited by
laws (as I have evidently shewn in the aforesaid
Treatise of the Law of Nature) is equal. But, that
the power of an absolute prince is attended with
much more difficulty in the exercise of it, and with
less security both to king and people, the foregoing
observations do, I think, sufficiently demonstrate.
So that a wise prince would not wish to change the
political form of government for an absolute: and
for the same reason it is, that St. Thomas is supposed
to wish, that all the kingdoms and nations of the
world were governed in the political way*.

* A very perverse use is made of some passages in this
chapter by Sir John Davies, in his Treatise on ers
e

143

He observes, that the King of England,, according to Fortescue,
has equal power with other monarchs, and thence infers that
he has a right to lay impositions on his subjects, in the same
manner that they do. It was usual in the time of King James,
to attempt to support the arbitrary measures of the Government,
by arguments drawn from the prerogatives of foreign princes.
In Sir W. Temple’s Memoirs, is related a curious conversation,
relative to the subject in the text, between King Charles the
Second and Gonovelt: the French Ambassador, in which the
latter gives it as his opinion, conformably to the sentiments of
Fortescue, “that a King of England who will be the man of
his people, is the greatest King in the world, but if he would
be any thing more, he is nothing at all.”

144

' CHAP. XXXVIII.

Prince. You will, I hope, excuse it, my Chan-
cellor, that while I have been proposing my doubts
and queries, I have obliged you to digresss so far
from the main point. What you have explained by
the way, has been very instructive, though it may
have alittle taken you off from your principal design ;
I now earnestly desire you, forthwith to proceed ;
and, as you at first set out and promised me, that
you would please to declare some other cases, in the
decision whereof the Laws of England, and the
Civil Law of Nations observe a different method
of procedure.

145

CHAP. XXXIX.

Chancellor. Six! In obedience to your request,
1 will endeavour to lay before you some other cases,
in which the laws aforesaid observe a different de-
termination : which is preferable I will not take upon
me to say, but shall leave it to your own judgment.
“The Civil Law” legitimates children born. be-
fore matrimony, as well as after, and qualifies
them to succeed in the inheritance of the parents.”
The Law of England does not admit children born
before matrimony to take by heirship. It calls such
an offspring natural, but not legitimate. In the
case before us, the Civilians extol their law, be-
cause they say, that it is an encouragement to
marriage, by which the sin is done away, and so
the souls of both parties are preserved from dam-
nation. They allege further, that the presumption
is, that such was the intention of the parties, as it
were, by. way of contract, at the time of committing
the act; the subsequent marriage demonstrates as
much. Moreover, the Church admits and allows
them for legitimate: these, 1 think, are the chief
arguments, by which they justify and defend the
Civil Law. To this the learned in our Law reply,
that. the sin of concubinage, in the case proposed,
is not purged by the subsequent marriage, though
in some measure the punishment of the parties
offending may be mitigated. They urge further,
that the guilty in this case are the less penitent
for their offence, in proportion as they find the
laws more favourable to it, upon which considera-

iN

146

tion they likewise become more apt to repeated
acts of this kind; and so act in contradiction both
to the commands of Gop, and the® ordinances of
the Church. So that this law not only shares in
the guilt of the offender by abetting such a practice,
but is quite beside the nature and definition of a
good law, “‘ which (as has been already observed)
is an holy sanction commanding things which are
honest, and forbidding the contrary.” Now, the
Civil Law, in the case before us, rather prompts on
the party to do things which are dishonest. Nor
is it a sufficient defence of this law, to say, that
the Church admits such issue for legitimates,. Since
our holy mother the Church dispenses with many
things which she does not allow of to be done. So
the Apostle dissolved the restraint upon virgins, by
way of dispensation; when, at the same time he ad-
vised the contrary, and would rather that all men
were even as himself. And far be it that so good
a mother should deny her compassion to her sons,
whose case is so much the more deplorable, because
they often fall into this sin, being betrayed by that
encouragement which the Civil Law allows it: and
the subsequent marriage is a good argument to the
Church, of their being truly penitent for what is
past, and of their resolution to contain for the future.
The Law of England has a quite contrary effect:
It does not give any encouragement to such a cri-
minal action, neither does it screen the offenders, but
lays a restraint upon them, threatens and inflicts a
punishment, that they may not offend. The incli-
nation is predominant enough in itself, without any
other incitements, it rather wants a curb, the pro-
pensions to lust are very importunate and constant:
and mankind, seeing they cannot be continued of
and by themselves, naturally desire to be perpetuated
in their species, which, without that, must be soon
extinguished : every living creature has an inclination
to be assimilated to the first cause, which is of a

147

perpetual eternal duration: the sensation of contact,
by which generation is effected, is a greater grati-
fication than the sense of taste, which only preserves
the individual. Wherefore Noah, by way of punish-
ment to his son, who had discovered his father’s
nakedness, cursed Canaan his grandson, and there-
by aggravated his son Ham’s punishment more, than
if he himself had been accursed : wherefore that law
which punishes such an offspring, affects the sin
with a severer penalty, than that which immediately
affects the offender in his own person: now, 1 must
leave it to you to judge, how truly and zealously the
Law of England prosecutes a criminal amour. It
is not content only to condemn the offspring to be
illegitimate, but debars it from succeeding to the
patrimony of the parents. Is not this a chaste law,
a law of order, does it not more effectually discourage
this sin, than the Cizl Law, which remits the sin
9 farpication without exacting any punishment at
all ?

K 2

148

CHAP. XL.

Besipes, the Civil Law says, that a natural son
is the son of the people, concerning which a certain
poet,

Cui pater est populus, pater est sibi nullus et omnis,
Cui pater est populus, non habet ipse patrem.

“He who has the people for his father seems to have
no father at all, or rather every one: he who has
the people for his father, has in reality no proper
father*.”” Since such an offspring, when born, had
no father, how by any subsequent act he can have
one, is not known in nature? A woman has by
two several men two sons; one of the said men
intermarries with her; which of the two sons is -
legitimated by such marriage? Opinion may prevail,
but reason cannot decide; there was a time when
both of them past in estimation for children of
the people, or community ; when neither knew nor
had any other father: wherefore, it would seem
inconsistent and unreasonable, thata son born after-—
wards of the same mother in lawful wedlock, whose
original is confessedly known, should be debarred
of his inheritance; and that either of the other two
sons born out of marriage should take as heir:
especially in England, where the eldest son, lawfully
begotten, inherits to the lands: any indifferent

* Haines v. Jeffreys, Comyns’ Rep. p. 2. Case of the marriage
of a bastard, within the Levitical degrees.

149

person would judge it no less unreasonable, if
a base-born child should have an equal share in the
inheritance. with one who is lawfully begotten.
And by the Civil Law, the inheritance is divided
amongst the male issue. St. Austin, in his book
(de civitate dei) has it, that Abraham gave all that
‘‘he had unto Isaac, but unto the sons of the
concubines which Abraham had, Abraham gave
gifts.” His observation is, that thereby it seems
to be intimated that the inheritance of right does
not belong to a spurious issue, but only a competent
living. Thus St. dustin; and under the term
(spurious) he includes all such children as are
illegitimate, or born out of wedlock ; as the holy
Scriptures do likewise, which never give to any
such the appellation of bastard. You see St. dustin,
nay, and Abraham too, makes no small difference
as to the succession of a spurious or legitimate off-
spring. Further, another Scripture sets a mark
of infamy. upon all illegitimate children in the follow-
ing metaphorical expressions; “the multiplying
brood of the ungodly shall not thrive nor take deep
rooting from bastard-slips, nor lay any fast founda-
tion.” The Church also does the same, by not
admitting them into Holy Orders ; or, if it dispenses
with them thus far; yet, they are never permitted
to enjoy any dignity or pre-eminence in the Church.
It is but fit and reasonable therefore that human laws
should deprive such persons of the privilege of
succession : the Scriptures also, in point of birth,
judge such inferior to those who are begotten in
lawful marriage. Gideon, that mighty man of valour,
is said to have had threescore and ten sons of
his body begotten ; for he had many wives, and but
one son by his concubine, and yet this one son slew
all his brethren, except Jotham, the youngest, who
hid himself. More wickedness is found to have
been in that one bastard-slip, than in threescore and
nine lawfully begotten. It is an old saying, If

150

a bastard be good, it is mostly by accident, or special
grace ; if wicked, it is but his nature. An unlawful
brood is thought to derive a corruption and stain
from the transgression of the parent, without any
concurrent fault of his own. So all of us have
contracted a very great corruption from the sin of
our first parents, though not of so opprobrious a
nature: the blemish with which bastards are
affected, is widely different from that of legitimate
children, The mutual culpable lust of the parents
affects their offspring, which does not give. itself
such a loose in the lawful chaste embraces of the
matrimonial life. The sin of fornicators is mutual,
and in common; and as it bears a near resemblance
therefore with the first sin, it leaves a worse impres-
sion on the issue than that of any other sin which
men commit in private without any accomplice. So
that a child so born, may rather be called the off-
spring of sin itself, than of the guilty persons.
Wherefore the wisdom of Solomon, distinguishing
between a spurious and a legitimate offspring, of
the latter says, “How beautiful is the offspring of
the chaste and nuptial bed? The mémory of it is
immortal, being acknowledged both by Gop and
man.” Whereas the other is not so much as
acknowledged amongst men ; for which reason they
are called the children of the people, or community :
and of these the same book of Wisdom says, “ chil-
dren begotten of unlawful beds, are witnesses of
wickedness against their .parents in their trial.’
For being asked about their parents, they reveal
their imperfections, as the wicked son of Noah did
his father’s nakedness. It is therefore thought that
the man who was born blind, concerning whom the
Pharisee said, ‘‘ Thou wast altogether born in sins,”
that he was a bastard, and so, in that sense, born in
sin: and when they add immediately, “and dost
thou teach us?’ They seem to intimate as if a
bastard were not qualified by nature, like the issue

151

of a lawful bed, either for knowledge, or for teaching
others. Therefore that law does not rightly deter-
mine, which equals bastards with children lawfully
begotten in the succession to the inheritance of their
parents, when the Church judges them not duly
qualified for Orders, or fit to preside in Gop’s in-
heritance. The Scriptures likewise put a wide
distinction between them, as we have above observ-
ed: And nature itself makes a difference in her
gifts, by setting as it were a natural mark or
blemish on the natural children, though secretly
impressed upon the mind. Which now of those two
laws, in the case before you, do you hold with and
give the preference to?

we

oe
at
©

CHAP. XLI.
—_>

Prince. Inveep | give the preference to that
law which does most effectually cast out sin, and
establish virtue. I am also of opinion, that such
are least entitled to the benefit of human laws,
whom the Law of Gop judges unworthy, and
whom the Church excludes. from her orders and
dignities, as being by nature more prone to wick-
edness.

Chancellor. 1 think you judge in the case very
rightly. I will now recollect some other cases,
wherein the Civil and our Laws disagree’.

* The provisions of the Civil Law, in favor of legitimation by

a subsequent marriage, were enacted by Constantine and his
successors. The principle on which they were introduced, is
thus expressed in the Code: “Cum gratias agere fratribus suis
posteriores debeant, quorum beneficio ipsi sunt justi filii, et nomen
et ordinem consecuti.” The import and effect of the rule cannot
be understood, without regarding it in connection with the re-
gulations of Justinian, respecting concubines. (Hienecc. Elem.
Jur. Cio. Inst. 1. 10. §. 165. et seg. Taylor’s Civil Law, p. 273 ;
and see further respecting the Rule, Hargr. Co. Litt. 245 a.n. 1.
Doctor and Student, Dial. i. c. 25.) It may not be thought
uninteresting to advert to a few circumstances, which may
serve to exhibit the sentiments of the people of this Country,
upon the subject of bastardy at different periods. The British
allowed bastards to inherit. (Hale’s Common Law, p. 306.)
The epithet Bastard was assumed by William the Conquerer,
and was applied to him, by writers who were his encomiasts.
(Appendix to the Second Report of the Commissioners for the
Public Records, upon the Authenticity of the Charter of William,
to the Earl of Britanny: where the Passages from the Ancient
Authors are collected. Str J. Haywards History of the Norman
Kings.) The privileges of the bastard Eigne, are in unison
with

153

with the principles of the Civil Law. (See also the Ground of the
Decision Tem. Edw. III, cited in Sir M. Finch’s Case, 6 Rep.) Selden
observes, that notwithstanding the famous dissent of the Barons
atthe Parliament of Merton, to the proposal for adopting the
rule of subsequent legitimation, the children of John a Gaunt,
by his wife Catherine, before marriage, were in another reign
made legitimate, by Act of Parliament. (Diss ud Fletam.
For «a Commentary upon ths Act, and for Coke’s Remarks on the
Title of Henry VII. to the Crown, 4 Inst. 36, 37. See also the
Act: for the Legttimation of Sir R. Sadler’s. Children, Tem.
Henry VIII, Petyt. Manuscript, Vol. VI. p. 336.) Blackstone
has elucidated some obscure and extraordinary clauses in a
sentence of excommunication, which was denounced with great
solemnity, on the occasion of the republication of the Charters,
Ae D. 1253, by reference to the transactions of the Parliament of
Merton, respecting special bastardy. (Blacks‘one on the Charters,
p- 79. et seq. Concerning Special Bastardy, as regarded by the
Law of England, before the Statute of Merton, and the Clause
in that Statute upon the Subject. Mirror, p. 10. Glanville, lib. vii.
c. 13, 14, 15. 2 Inst. p. 96. et seg. Hurd’s Dialogue on the
Constitution.) Richard III, took great pains to propagate a be-
lief of the bastardy of the children of Edward IV, and accordingly
employed a preacher to deliver a sermon at Paul’s Cross, upon
one of the passages of Scripture, cited by Fortescue in the text,
*‘bastard-slips shall never take deep roots.” (See an Account
of this Sermon. Sir T. More’s Patiful Life of Edward V.) The
same King thought it politic to proclaim the bastard descent of
Henry Tudor, in order to prejudice the Country against
his pretensions to the Throne. (Letter to Sheriffs of Kent,
Paston Letters, Vol. 11.) The imputation of a spurious birth
attached to Queen Mary and Queen Elizabeth ; and the different
conduct of these two Sovereigns, in respect of this circumstance,
after their accession, are matters of historical notoriety. But
less attention has been given by writers to the measures adopted
by. king James and his predecessor, for establishing the illegiti-
macy of the Suffolk family. (Much valuable Information on this
Subject, is collected in Mr. Luder’s Tract on the Succession.)
Sheffield Duke of Buckingham, mentions a difficulty in which
the delicacy of the Parliament of Queen Elizabeth involved
them, when they were proceeding to pass an Act, establishing
the title of her issue; the usual language in her father’s time,
being. “issue lawfully begotten.” On debate the House con-
sidered, that it would be more consistent with decorum, to alter
the phrase to that of “natural born issue:” the circumstance,
however, created a suspicion among the people, who apprehended
that the Queen’s great favourite Leicester, intended to set up
for King some bastard of his own, after the death of Elizabeth,
pretending that it was born of her, and bred up privately.

(Duke

154

(Duke of Buckingham’s Works * On Treasons.”) James Il, when
Duke of York, always testified great jealousy at the omission
of the word “ natural,” prefixed to the word “ son,” in warrants
and commissions, directed to the Duke of Monmouth. (Clarke’s
Stuart Pupers, Vol. I. p. 496. That the Word “ Natural,” in a
Letter written by Edw. IV, is used in the Sense of “ Legitimate,”
Ellis’s Original Letters, Vol. I. p.9; and see bid, p. 268, con-
cerning a Bastard of Henry VIII, to whom Wosley was Godfather,
and on the Appellation Fitzroy first given by King John.) War-
burton conceives, that the idea of the sins of fathers being
visited on children, was made a part of the Mosaic dispensation,
in order to supply the absence of any hold upon the mind,
arising from the opinion of a future state. In the same manner
the law of bastardy, like the provision of forfeiture in treason,
if it check the commission of offences highly prejudicial to
society, may merit approbation; although the means by which
this end is accomplished, are, at first sight, revolting to our sense
of justice. In the. consideration of this subject, the remarks
of Montesquieu may deserve attention, which tend to explain
why bastardy ought to be more odious in free States, than under
an arbitrary government. But whatever may be the expediency
of the incapacities to which, by the spirit of our jurisprudence,
illegitimate children are subject, considered as political regula-
tions: the moral effect which the circumstances of their birth
may have upon the mind, is a totally different question. As
to this, the life of Savage affords an interesting comment on the
text: and tends to shew that the aberrations of the offspring
of an unlawful intercourse, are rather to be attributed to the
disadvantages to which their education is likely to be sub-
jected, than to any natural depravity derived from the crimes
of their parents. This is the subject of pathetic lamentation,
by that ill-fated man of genius.

———_———_—— No mother’s care
Shielded my infant innocence with prayer:
No father’s guardian hand my youth maintained,
Called forth my virtues, or from vice restrained.

From ties maternal, moral and divine -
Discharged my grasping soul.—pushed me from shore,
And launched me into life without an oar.

(And see Edmund’s Soliloquy in Lear. The Character of Absalom

in Dryden’s Absalom’ and Architophel. For a Mine of Historical

abate respecting the Subject of this Note, see Tiraquell de
obilitate.)

CHAP. XLII.

i

Tue Civil Laws decree that the issue always
follows the venter, that is, the condition of the
mother: for example, if a bond-woman be married
to a free-man, the children shall be bond. Again,
if a bond-man marrieth a free-woman the children
shall be free: by the laws of England “the issue
does not follow the condition of the mother, but
always that of the father:’ so that a free-man
begetteth free children whether he be married to
a bond or free-woman. So a bond-man, who is
married, can beget none but bond-children. Which
law think you is more equal in its decision! Is not
that a cruel law, which, without any fault of the
party, adjudges the issue of the free-man to be
bond ; neither is that law deemed by some less
cruel, which adjudges the issue of a free-woman
to be bond: the Civilians say, that their laws give
the best determination in the case; for they say,
“A good tree cannot bring forth bad fruit, neither
can a corrupt tree bring forth good fruit.” And
it has the consent of all laws, that every plant
belongs to the soil where it is planted: the child
also has a more certain knowledge of the mother
who bore him, than of the father who begot him.
To this the sages in our laws reply, that a child
lawfully begotten hath no more certain knowledge
of the one parent than of the other; for both
laws, however wide in other respects, agree in this,
that he isthe father whom the marriage declares

156

so to be. Is it not more reasonable that the issue
should follow the condition of the father, than that
of the mother, since 4dam, speaking of such as
are joined in wedlock, says, “And they two shall
be one flesh:’’ which our Saviour, in the Gospel,
thus explains, “they are no more twain but one
_ flesh.” And forasmuch as the male comprehends
the female, the whole flesh, so made one, ought
rather to regard and to be referred to the male,
as the more worthy. <‘‘ Male and female created he
them, and called their name Adam.” The Civil
Laws themselves allow, that the woman always
shines by reflexion from her husband, whence
(C. Qui Professione se excusant L. nono L. fi.) the
text has it, ‘‘ We advance women by giving them
the titles and honors of their husbands:” we honor
them with the strnames of our families. We
proceed and decree for and against them in the
Courts of law in the name of the husband. We
change their habitations: but in case they after-
wards marry a man of inferior rank, they are
deprived of their former honors, and follow the
condition, as well as habitation, of the latter
husband. And since all the children, especially
the sons, bear the name of the father, and not
of the mother, whence can it be, that the son,
in respect of his mother, should lose his rank
and follow her condition, when, at the same time,
he is known in law by the name of his father
who begot him: nay, the woman is distinguished
according to the rank and quality of her husband,
neither of which can ‘suffer diminution, or be
sullied by any crime or base condition of the wife.
That law ought to be accounted cruel and unjust,
which, without any the least pretence or reason,
leaves the son in a base condition. Again, as
to. the inheritance, which the father (a free-many
lying under no imputation, crime or disability
in Jaw, whereby forfeitures accrue) has, with great

’

157

care and industry, acquired for himself and family,
that in the case before us the inheritance should
pass into the possession of a stranger who took no
pains in the acquisition thereof, seems very unjust.
Further, the base condition of the child affects the
father’s name with the same blemish. Again, that
must needs be judged to be an hard and unjust law,
which: tends to increase the servitude, and to lessen
the liberty of mankind. For “human nature is
evermore an advocate for liberty.” Gov Almighty
has declared himself the Gop of liberty: this being
the gift of Gop to man in his creation, the other
is introduced into the world by means of his own
sin and folly; whence it is, that every thing in
nature is so desirous of liberty, as being a sort of
restitution to its primitive state. So that to go
about to lessen this, is to touch men in the ten-
derest point: it is upon such considerations as
these, that the Laws of England, in all cases,
declare in favour of liberty. True it is, where
the father is a bond-man, though married to a free-
woman, the child is, by our laws, in the same state
of bondage with the father; nor is this unreasonable
or unjust: for a woman who has undervalued herself
by marrying a bond-man, is thereby made one flesh
with him. In consequence of the laws above re-
cited, she follows the condition of her husband,
and by her own voluntary act hath put herself under
subjection to him, having been before under no
constraint of the law so to do. Those, who by
act of law enter themselves bond-men in the king’s
Courts, or sell themselves into bondage without
any compulsion are in the same case. How then
can the laws make that son free, whom the mother,
in the present instance, has so brought forth in
her state of subjection: for no husband can ever
be. so much in subjection to his wife, let her be
of never so high a rank or quality, as this woman
hath made herself subject to her husband; whom,

158

though a bond-man, she hath advanced to be her
lord, according to the sentence of Gop himself,
pronounced in Holy Scripture, “ that every. wife
shall be in subjection to her husband, and he shall
rule over her.” What the Civilians say concerning
the fruit of a good or corrupt tree, is more to our
purpose than to theirs; since every wife is either
bond or free, according to the condition of her
husband. And in whose soil (pray) does the
husband plant, if not his own, when the wife
is made one flesh with him? What if he hath graft-
ed a slip of good kind upon a crab-stock, since
the tree is his property, is not the fruit still his
fruit, though it favour of the stock? So the children
begotten of a woman are the husband’s, whether
the mother be bond or free. Nevertheless, by the
laws of England, the lord of a bond-woman, who
is married to a free-man, without his consent first
had and obtained, I say, in this case, though the
lord cannot get her divorced a vinculo matrimonu
(it being expressly said in the Gospel, “ Whom Gop
hath joined together let no man put asunder.’’)
Yet he shall recover against the free-man all his
damages which he hath: sustained by reason of the
loss of his bond-woman, and of the service which
she owed him. This, I conceive, is the sum,
substance and manner of proceeding according to
the laws of England, in the case now declared.
And now, my Prince, what is your opinion of the
matter, and which of the two laws do you judge
to be the most eligible *? .

* Ulpian regards the maxim which is mentioned in the text,
as a part of the Law of Nature. It may be considered as
flowing from a more general principle in the Civil Law, “ Pater
est quem nuptiz destinant.” Whereas the cohabitation between
two slaves, or between .a slave and a free-man, was called
contubernium, and not nuptie, or matrimonium: and to such

intercourse, the Imperial Law did not give so much countenance,
as

159

as to presume the father certain. (Taylor's Civil Law, p. 425.
Concerning the Right of Dominion in the Mother, see Hobbes’
de Corpore Politico, c. 4.)
This Chapter of Fortescue, is remarkable, for exhibiting
a view, taken by a contemporary writer, of a state of society,
which has long ceased to exist in England. The origin of
villeins in this Country, has been variously accoun for :
The conquest of the Britons by the Saxons, or the circumstance
of the latter people having brought over with them their
slaves from Germany, are assigned as the probable causes
of slavery in this Country: the practice of sanctuary, by which
the person, taking refuge, was sometimes obliged to become
the villein of ae proprietors of the asylum, may have
increased the numbers of the servile class. By an inhuman
Act, passed a. p. 1543, vagabonds were adjudged to be the
slaves of any one who presented them to a justice. It was
contended by Mr. Hargrave, in his argument for Somersett
the negro, that the English Law recognized as villeins, only
those persons whose families had been such time out of
mind. (Archeol. Antiq. Soc. Vol. II. p. 312, 349. Hallam’s
Middle Ages, Vol. II. p. 136. Burnet Hist. Ref. Part II. B. 1.
p- 83.) In enquiries respecting the condition of the ancient
villeins, it is necessary to attend to the distinction between the
villani and servi, which is preserved throughout Domesday
Book, and to the primary meaning of the term “villanus,” as
collected from the more ancient laws, in which it is used
to signify simply the inhabitant of a Vill. (Lord Lyttleton’s
Henry II. Note to a Law of the Conqueror, Append. to Book I,
and the Notes to Book II. Kennet’s Parochial Antig. Gloss.
Villanus, Servus ; Hallam’s Middle Ages, Vol. II. p. 135. Diss.
on D. B. Report of the Commissioners for the Public Records.
Fi or the use of these Terms by our earliest Law Writers ; Glanville,
lib. v. per totum. Bracton, lib. iv. p. 190, 192-) Villenage forms
the subject of the fifth book of Glanville: and it is highly interest-
ing to trace the gradual relaxation of the many rigorous principles
of the law, in respect of villeins, which prevailed in the time
of that author. Thus, with reference to the subject of the
present chapter, he lays it down, that if a free-man take to
wife a woman born in Villenage, he shall be deemed a
ville during the marriage: but we learn from Britton,
that the law afterwards changed, and the wife became en-
franchised, so long as the husband lived. (Glanville, lib. v. c. 6.
Britton, 78 b.) As many persons, of free condition, held lands
according to Bracton’s expression, “nomine villenagii et non
nomine persone,” it would be irrelevant to investigate the
circumstances attending transformation of villenage tenures,
into the modern copyholds: it may be-noticed, that more
than half of the lands in this Country, are supposed to ie
een

160

been held by base services; however, at the period when
Fortescue wrote his treatise, it is probable the tenure by pure
villenage, was nowhere to be met with in England. (See
on this Subject, Reeves’s History of the Law, Rich. II. Edw. IV.
Hallam’s Middle Ages, Vol. II. p. 134, 381, 385. Blackstone
on Cop holders. Barrington on 1 Rich. II.) To Wickliff and
his followers, is to be ascribed the merit of propagating) the
doctrine, that the Christian Religion is repugnant to slavery :
Sir T. Smith, mentions that the lower orders of the Clergy,
were very zealous in procuring the manumission of villeins:
a preamble to a manumission by Henry VIII, recites that
the act is pious and meritorious with God, who created all
men free: a commission is preserved in Rymer, which was
issued by Queen Elizabeth, for giving their freedom to such
of her bifleins as chose to pay a composition ; whereas Glanville
states it to be the law when he wrote, that a villein was in-
capable of purchasing his own manumission: Sir T. Smith
says, that in all his time, he never knew any instance of
a villein in gross. Mr Hargrave, in his argument for Somersett
the negro, has detailed a multitude of devices and _ fictions,
by which the law of England assisted a man in liberating
himself from bondage: ind’ he has collected the rules, which
have been adopted in his favour, for the purpose of securing
him an impartial trial, when his liberty is at stake. In the
same spirit, Lord Bacon and Sir E. Coke enumerate three
things, to which the law of England extends its extraordinary
protection, and these are, life, dower, and liberty. (On Charters
of Manumission, see Hickes’s Diss. Epist. Madox’s Formulare
Anglicanum. Robertson’s Charles V. Vol. I. n. 20: On Villeins
being included in 29th Art. of Magna Charta. Hallam, Vol. 11.
p- 382: On the Court for the Misdemeanors of Villeins, 4 Inst.
p: 166. On the Use of the Term Slave, St. 1 Edw. VI. c. 8.
On the Point, whether the King can confer Knighthood on a Villein
Petyt. Manuscript, Vol. XXXIX. p. 119 6. Petition of the
Barons, that no Villein should send his Son to School, Brady,
Vol. III. p. 393. On the Protection of the King’s Presence to
a Villein. Plowden, 323. Questions of Law and Concience respect-
ing Villeins: Doctor and Student, Dial. I. c. 43. Dial. II. e: 18,
and 19. On the latest Testimonies to the Existence of Villenage in
England. Hallam, Vol. Il. p. 393.)

16l

CHAP. XLIIL
—

Prince. Tuere is no pretence in reason to
doubt but that in this case the Laws of England
excel the Roman Imperial Laws: and, for my
own part, I always think that law most eligible,
which shews more favour than severity to the
parties concerned in it, and who are to be judged
by it. For I remember an excellent. rule, which
says, “that matters of hardship are odious, and
ought as much as possible to be restrained, but
favours are to be amplified, and extended to their
full extent.”

Chancellor. With good reason. I will propound
one case more, wherein the two laws differ, and
then conclude; lest I prove tedious, whilst I ex-
patiate upon the variety of more cases, and the
difference each law observes in its decision; and
so my discourse would be drawn out into such
a length, as instead of entertaining, to disgust
you.

162

CHAP. XLIV.
—@—

Tue Civil Laws commit the guardianship of
orphans to the next in blood, whether the relation
be by the father’s or mother’s side, that is, to
every one as he stands next in degree and order,
to take by inheritance, in case the orphan die.
The reason of this law is, ‘‘no one is presumed
to take more care of, or to have a greater regard
for the orphan, than he who is next in blood.”
The Laws of England determine quite contrary
in the case. If an inheritance which is held in
socage descend to .an orphan from any relation
by the father’s side, such orphan shall not be in
guardianship to. any of his father’s relations; but
he shall be. taken care of by the relations of his
mother’s side. Again, ifan inheritance descend to
him from. any relation by the mother’s side: the
orphan. and such his estate shall be under the
care and direction of the next akin ‘by the fa-
ther’s side, and not otherwise, until he come of
age. The law says, “to commit the care of a
minor to him who is the next heir at law, is the
same, as delivering up a lamb to the care of a
wolf, that is, to be made a prey of.” But if the
inheritance be held by knight’s-service, and not
in socage, then, by the laws of the land, the
minor and his estate shall not be under the
management of his relations of either side; but
both shall be under the care and direction of the
lord of the fee, until he arrive to his complete

163

e of one and twenty: who can be supposed
better qualified to instruct him in deeds of arms,
which, in virtue of his tenure, he is obliged to
perform for the lord of the fee, than the lord
himself, to whom such service is due from his
minor; and who is supposed to have a superior
interest to advance his ward in the world, in this
and other parts of education, than any of his own
relations or friends. The lord, in order to have
the better service from his tenant, will use his
utmost care, and may well be thought better quali-
fied to instruct him in this way, than his own
relations, who, probably, in this respect are pre-
sumed, for the most part, wholly ignorant and
unpractised ; especially, if his estate be but a small
one: what is or can be of greater use to a minor,
who, in consequence of his tenure is obliged to
venture his life and fortune, 2f required, in the
service of the lord, than to be trained up in mili-
tary discipline, whilst he is yet a minor. When
he comes of full age, he cannot decline the nature
of his tenure, but is obliged to do suit and service
to his lord of whom he holds. Indeed, it will be
of no small advantage to the kingdom, that the
inhabitants be expert in arms; for the philosopher
Says, ‘every one behaves boldly in that way in
which he knows himself to excel.” Is not this
law then, in your judgment, my Prince, to be
preferred to the other already described*?

* The comparison instituted in this chapter between the pro-
visions of the Civil Law and of the Common Law, in respect
of the appointment of guardians, is cited with approbation by
Coke in his Institutes, (Co. Litt. 88 b.) the expression “ agnum
committere lupo ad devorandum” is similarly applied in the
Assizes de Jérusalem and in the Statutum Hibernie, 14 Henry
IIT: and the same jealousy of committing the care of the orphan,
to a person who can derive any benefit from his death, is found
in the laws of other countries. (Assizes de Jerusalem, c.178. Barr.
on 14th Henry III; and see Glanville, lib. vii. c. 11. Bracton,

lib. ii.
L 2

164

lib. ii. c. 37. and. further concerning this- Rule, Craig. Jus.
Feud. L. 2. D..20. s.6. Sullivan's Lect. 127. 2 P: Wms. 262)
The reader will probably think that the reasons advanced in
favor of the English Law of guardianship, upon this particular
point, had, it is to be presumed, considerable weight in less
civilized times, but are not applicable to the present state of
society ; and that a person who may eventually become entitled
to an estate, will be more likely to preserve it than one who
has no prospect of possessing it. In the Civil Law, after Jus-
tinian had abolished the distinction of the “ agnati” and
“cognati” in respect of the right of inheriting, there could
be no proximity in blood, without proximity of succession.
The regulations of the Civil Law for the protection of minors,
were far more perfect than any which existed in this Country,
in the time of Fortescue. It had its testamentary guardians,
and guardians by the assignment of the magistrate: whereas our
testamentary guardianship is of no earlier date than the rei
of Charles I]; and the jurisdiction of our Chancellors, in the
case of wards, has not been traced higher than the year 1696.
(/fargr, Co. Litt. 88 6.) The Civil Law abounds with judicious
provisions for the proper execution of the office of the Tutor
and the Curator: and the discharge of these important trusts
was a’ compulsory daty. Our guardianship in socage is a very
defective institution: originating wholly from the tenure of
lands, it does not arise unless the infant is seized of rea/ pro-
perty, holden by socage, and descended upon him. The minor
has_no guardian in socage, if he be possessed merely of lands
obtained by purchase, in the technical sense of the term, or if
he have only rent charges or other hereditaments not lying
in tenure, equitable estates, personal property or copyholds: in
cases where the guardianship in socage exists, it seems doubtful
whether it embraces personal property: and there is reason to
believe, that the guardianship in socage was anciently the sub-
ject of lease and transfer: lastly, it was not until the reign of
Anne, that the action of account was given against the ex-
ecutors of guardians in socage: whilst before the expiration of
the guardian’s trust, the only remedy for his misconduct is in
Chancery.—As to the guardianship in chivalry, the Law of
Wardship, was, at the time Fortescue wrote, principally re-
gulated by the Statutes of Merton and Westminster the first:
However plain the title to the ward might have been, when
the lord and tenant held in fee simple, yet it became a matter
of great perplexity, when there were reversions and remainders ;
and when. questions of prerogative, of collusion, and the rights of
priority, and posteriority were intermingled with the doctrines
of estates, discontinuances,: disseisins and remitters. The ward-
ship was considered an interest in the guardian, rather than a
trust for the minor: it was saleable; it passed to the Lord’s
: representatives ;

165

representatives: subject to the expence of maintaining the in-
fant, (a duty, the enforcing of which was not very carefully
provided for by our law,) the guardian received all the profits
accruing out of the land of the ward, for his own emolument.
Madox has collected from the records of the Exchequer, nu-
merous instances of trafficking for the King’s wards: It appears
from the Great Roll of Henry III, that twenty thousand marks
were given for the marriage of Isabel, Countess of Gloucester.
(Madoa’s Exchequer, 221 et seq. 322. and sce Coke’s Comm. on
Magna Charta, c. 4.) The Paston Letters exhibit many of the
evil consequences, arising out of the guardianship in chivalry.
So precious were wardships considered in former times, that the
conveyance of the ward from place to place, was often a matter
of considerable danger; we read, on one occasion, of a child
being dressed up in a manner to resemble the ward, and
being dispatched with a retinue, whilst the real ward was
carried privately by another route. The Sheriff was sometimes
called upon to take the ward out of the hands of the guardian,
who used to detain him beyond the legal period, under a pre-
tence that he was not of age. (Paston Letters, Vol. LI. Lett. 51,
54, 55, 56, 64. Vol. IV. Lett. 59. ad finem.) The importance
which the feudal lords attached to their wardships, is apparent
from the numerous fluctuations in the law respecting them,
observable in the early Charters, and the articles of Charters.
(See Blackstone on the Charters, passim.) It will not fail to occur
to the reader, that most of the advantages pointed out by For-
tescue, as resulting from the guardianship by Knight Service,
are inapplicable to the case of female wards: whilst the severities
to which they were subjected by the Feudal Law of this Country,
exceeded those to which the male heir was liable. (Glanville,
lib. vii. c. 12. Lord Lyttleton’s Henry II. Book II. p. 204.
Hallam’s Middle Ages, Vol. Il. p. 165. On the Antiquity of
Wardships, Hallam, ibid. Spelman on Feuds, cxv; and see ibid.
on the Expression in St, Merton, “ Si parentes conquerantur.”
2 Inst. 191. On the Court of Wards, 4 Inst. 188. And further
on the Topics adverted to in this Note, Hargr. Co, Litt. 88 b.
particularly as to the Guardianship by Nature, and its Interference
with that of Chivalry. Reeves’s History of the Law, Henry VI,
Edw. IV. Ley on Wards and Liveries. Sir T, Smith de Rep.

lib. iii. ¢. 5.)
The numerous inventions which were practised for the
urpose of evading the guardianship in chivalry, prove, that
it was looked upon by the nation as a severe burthen. An
attempt was made in the time of James, to give a compensation
to the King, in lieu of his revenue arising from wards and
liveries. (See Coke’s Remarks on this Transaction, 4 Inst. 202.)
And in the reign of Charles II, the abolition of these and other
feudal oppressions, was accomplished on the terms of conferring
upon

166

upon the Crown a perpetual excise. (For some curious particulars,
relate to the debates on this occasion, Harris's Life of Charles I.
p- 369. et. seg. Rose’s Observations on Fox’s Historical Work,
p- 28. Heywood’s Vindication, p. 94.) Fabian Phillips has ar-
gued with some plausibility against the abolition of feudal
wardships ; and he tes with considerable eloquence on the
mischiefs which must accrue from the loss of ‘a seminary
of honor, a standing, noble, and more obliged militia.” (Lige-
ancia Lugens, and Tenenda non Tollenda.) Mr. Brodie suggests,
that the Law of Wardship had the effect of preventing the
aristocracy from acquiring a pernicious influence in society,
by accumulations during long minorities, at a period when
the other ranks of the community were not able to form a
counterpoise to them. The reader will probably think that
the institution of the guardianship in chivalry merits his
study and attention, not more on account of its effects upon
the education and manners of our ancestors, than of its in-
fluence on the progress of the domestic liberties of the Country,
during a considerable period of our history, by the organizing
of an armed population, in the absence of mercenary forces,
or even of royal guards.

167

CHAP. XB.

co ae

Prince. It is so; for in the first instance (as
you observe) it provides with greater care and
caution for the preservation of an orphan, than
the Civil Law does: but Iam much more pleased
with the other part of it; because, by this means,
our young nobility and gentry cannot so easily
degenerate; but will rather, in all likelihood, go
beyond their ancestors in probity and courage, and
in every thing that is virtuous -and praiseworthy,
being brought up in a superior and more honorable
family than that of their parents: nay, though their
fathers may have had the good fortune to be educated
in the like manner before, yet the father’s house,
even with this advantage, cannot be compared to
that of the superior lord; to whom both, in their
turns, have been in ward. Princes of the realm, being
under the same regulation, like as other lords, who
hold immediately from the king, cannot so soon run
into debaucheries, or a downright ignorance: because,
during the time of their minority, they are brought
up at the court. Upon which account I cannot but
highly commend the magnificence and state of the
king’s palace, and I look on it as an academy* for

* It was anciently a very common practice for people of
_ condition, to procure their children to be admitted into the
house of some great person, in which they discharged menial
offices, and procured in return superior advantages of education,
and the prospect of future patronage: Sir Thomas More gave
an early promise of his extraordinary talents, during the time
he waited at the table of Cardinal Morton. Many curious par-

ticulars

168

_. the young nobility of the kingdom to inure and

imploy themselves in robust and manly exercises,
probity and a generous humanity.— All which

ticulars are related of the domestic establishment of Wolsey,
to which there belonged nine or ten lords, fifteen knights, and
forty squires: Lord Percy, the admirer of Anne Boleyn, was of
this number. Traces of the same custom, are to be seen in
the familiar letters of the period when Fortescue wrote. (Paston
Letters, Vol. III. Lett. 34, 35. Vol. IV. Lett. 14.) And it appears
from Sir G. Wheeler’s Protestant Seminary, cited in Dr. Words-
worth’s Ecclesiastical Biography, that the practice was not obsolete
in the time of Charles I. The restraint upon the marriage of the
nobility, exercised by some of our Sovereigns, seems to have
arisen from the personal submission, which was voluntarily
yielded by the children of distinguished families, owing to the
limited openings, then existing, for talent and enterprise.—The
Dutchess of Newcastle, in the life of her husband, mentions, that
he possessed a singular knowledge of the use of weapons, which
he communicated to no person excepting his own sons, and the
Duke of Buckingham, his ward: ‘The martial sports, by means
of which the youth of this Country were formerly instructed in
the art of war, are detailed with great minuteness by Strutt.
The tournament was a general name applied to these warlike
games; under which was comprised the quintain, tilting at the
ring, tournaments, or combats of several knights, justs, or
combats between individual knights: from the exercise of the
two last species of diversion, all persons below the rank of an
esquire were prohibited. These occupations were considered of
so great importance, that a Statute was made in the reign of
Henry V, prescribing regulations for the conduct of them.
(Strutt’s Antig. Vol. II. Strutt’s Ancient Sports. Madox Bar.
Ang. 202. 3 Inst. 160. Journal of Edw. VI, 2 Burnet. Hist. Ref.
p- 62. Archaeol. Antig. Soc. Vol. XVIII. Gloss. Mat. Par. 2.
Torneamentum. Nuge Antique, p.1.) In Henry’s History are
detailed the particulars of a grand tournament held in Smith-
field, a. p. 1467. (Henry, Vol. V. p. 536.) And in the Paston
Letters, mention is made of a Spanish knight having come to
England with a scarf round his arm, offering to run a course
with a sharp spear for his fair mistress’ sake. (Vol. I. Le¢t. 2.)
It is true, that the reign of Henry VI, is not a distinguished period
in the annals of English chivalry ; and proclamations of that time .
were sent round to the Sheriffs of the different counties, «« De
fugitivis ab exercitu, quos terriculamenta Puella exanimaverunt,
arestandis.” (Rymer, Vol. X. p. 459, 472.) The attention given —
by our ancestors to these exercises, which exhibit the lively

image of war, has contributed in no immaterial degree to our
national

169

greatly tend to the reputation and prosperity of the
kingdom, both at home and abroad; and make a
great part of its security against invaders, and render
it formidable both to its allies and enemies. This
advantage could not accrue to the state, if the young
nobility and gentry were to be brought up under
‘the care and inspection of their own friends and
relations, who are but persons of the same rank
and quality with themselves. As to the sons of
the burghers, and other freeholders in socage
tenure, it cannot be prejudicial to the publick good,
if they be brought up among themselves, with
persons of their own degree, and though they be
not bound to perform any military services; as, to
any one who considers aright, may very plainly
appear”. :

national glory. And, it is in the splendid tournaments of the
Court of Elizabeth, that we trace the sources of that chivalrous
enthusiasm, which instigated the achievements of Lord: Herbert
of Cherbury ; and signalized the last moments, even more than
the life of Sir Philip Sidney. (Account of the last. Hours of Sir P.
Sidney, Harl. Manuscripts. Vitellius, C. xvii. 302. His Military
Funeral, Ellis’s Original Letters, Vol. III. Spenser’s Astrophel.
Comparison between Sir P. Sidney, Lord Herbert of Cierbury and

the Chevalier Bayard. Lyttleton’s Henry II. Note to Book If.)
> The obligation of military service, arising from tenure, is
enforced by the laws of the Conqueror: although the principle
upon which the extent of the duty was regulated has been the
' subject of controversy among legal antiquaries. (Selden’s Tit.
Hon. Part II. c. 5. §. 17. Spelman on Feuds, c. 27, on the question
whether a Knight’s Fee was limited by any definite portion of Land,
as two Carucates. See concerning Voyages Royal, and the terms
“ Intrinseca” and “ Forinseca” applied to services, Hargr. Co.
Litt. 69. b. n. 3. from Hale’s Manuscripts. 74. a.n. 1.107. a... 5.
Madox, Bar. Ang. p. 226. Reeves’s History, Heary III. Bracton,
p- 35. 6. Arguments in the Case of Ship Money.) The Norman
Chronicle expresses with clearness the motive and the man-
ner of levying the first general scutage in this Country,
which was. on the occasion of the expedition against Toulouse,
in the reign of Henry II. A levy of this nature had been
before assessed, in the second year of the same King, upon
Bishops and Abbots holding in capite. (Chron. Norm. p. 995;
Madow’s Exch. c. 26.) The-equivalent of scutage does not appear
to

170

to have been always accepted during the subsequent reigns, espe-
cially in the case of tenants in capite holding “ut de corona:” and
fines were occasionally exacted from the Barons, on account of their
neglect in performing personal service.—This imposition was made
the subject of parliamentary assessment ; the accomplishing of which
is a matter of curiosity in the history of our early charters: It
gave rise to several forms of reservation of services, which were
made with reference to it, as, for instance, the payment of a
specified proportion of all escuages, assessed by Parliament:
And whether from this circumstance, or from its being annexed
to some particular species of knight-service, and not embracing
others, such as cornage and castle-guard, escuage is sometimes
spoken of both by Lyttleton and Coke, as if it were a distinct
tenure from knight-service, instead of being incident to it, like
homage and fealty. (Wright’s Tenures, p. 122. Madoa’s Bar.
Angl. p. 227. Hargrave’s Notes to Coke Lyttleton, Chapters
on Escuage and Knight Service. Madox, Exch. c. 26. Lord
Lyttleton’s Hen. II. Notes to Book II.) The last occasion upon
which escuage was imposed by the Parliament, occurred in the
reign of Edward II, and the mode of levying it was merely tra-
ditionary in the time of Lyttleton: Our Kings were generally
supplied in their wars by contracts with the nobility and gentry,
to serve with so many men, according to the terms of an in-
denture ; this practice appears to have existed as early as the
reign of Edward III. (Cotton’s Abridg. of the Records, 13 Edw. III.
and the References to Brodie’s Introduction, p. 246. Henry's
History, Vol. V. p. 460. Barrington on 17 Edw. IV. Case of
Soldiers, 6 Rep. .See the Copy of an Indenture for Service
against France, in the 19th Hen. VI, and a Letter of the King
upon the Subject of the same Expedition, to the Bishop of Bath.
Archeol. Antiq. Soc. Vol. XVII.) The history of the As-
sizes of Arms and Commissions of Array, depends alto-
gether upon a different principle than that of the feudal
obligation, founded upon the tenure of lands.—We read very
little of private wars in England; and they do not appear
ever to have been legal, notwithstanding there is a passage in
Glanville which seems to sanction them: after mentioning
the cases in which a lord might claim an aid from his vassals,
he states it as doubtful, whether he might also do so ad guerram
suam manutenendam: The most prominent instance of what
might be deemed a private war, arose out of a contention between
the Earls of Glocester and Hereford, in the reign of Edward I,
which terminated in both of those powerful nobles being com-
mitted to prison, and paying heavy fines. There is a letter,
in Mr. Ellis’s collection, written by Henry VII, to Sir W. Say,
which shews, that it was the practice till a late period for persons
even of an inferior rank to the nobility, to call upon their vassals

to assist them in determining their private feuds. But such acts
of

171

of outrage and spoliation were repeatedly punished as breaches
of the King’s peace. (Glanville, lib. ix. c.8. Hale’s P. C. p. 135,
Eliis’s Original Letters, Vol. 1. 39. Hallam’s Middle Ages, Vol. II.
p- 200. Extracts from D. B. by Gale, Scrip. Hist, Brit. p. 759,
777. Earl of Northumberland’s Case, 5 Hen. IV, Vaughan
142. Robertson’s Charles V. Vol. I. Note 21, where some reasons
are suggested to account for Private Wars being more rare in
England than on the Continent.) It will be collected from the
circumstances which have been adverted to in this note, that the
feudal institutions did not produce in England those habits of
military life, for which the manners of the continental nations
of Europe, during the early period of their history, were so
conspicuous. A reflection which may go far in explaining the
remarkable fact of our ancestors having so eminently surpassed
the inhabitants of other European States in a respect for civil
rights, the maintenance of equal law, and the establishment
of an envied Constitution.

172

CHAP. XLVI.

—»—

Chancellor. Tuere are some other cases in
which the Civil Law and the Common Law of
England differ. For instance: the Crvzl Laws, in
case of a manifest theft, where a person is taken
in the fact, adjudge the criminal to restore fourfold,
and for a theft which is not so manifest, where the
proof is not so plain, the judgment is twice the
value of the thing stolen. But the Laws of Eng-
land, in either case, punish the party with death,
provided the thing stolen, exceed the value of twelve
pence. Soin the case of persons who have been
bondmen, and are set free, if afterwards they mis-
behave, and prove ungrateful, the Crd Laws ad-
judge them into slavery again. But, by the Laws
of England ; he who is once made free, is always so,
let his behaviour afterwards be what it will. Other
cases there are not a few, of this and the like kind,
which, for brevity’s sake, I pass over. In the two
cases now propounded, I forbear to expatiate, or
insist upon the superior excellence of the Laws of
England: the properties of each law do not require
such a nice examination: besides, I doubt not, your
own good natural genius sufficiently distinguishes
between them*.

* It will be remembered, that theft was not considered in
England one of the Pleas of the Crown until Magna Charta,
(Reeves’s History of the Law, cap. 3. Glanv. lib. i. c. 2. 2 Inst.
32.) and that the civil remedy by appeal of larceny was conti-
nued till the Statute of Henry VIII. made for the restoration of

stolen goods. (Barrington on Stat. 21 Hen. VIII. 3 Inst. 242.)
In

In examining the criminal jurisprudence of this Country, :in
ancient times, it is proper to take into consideration the privi-
leges of clergy, and of sanctuary, which had a material influence
on the practical etfect of penal enactments. Benefit of clergy
which was at first claimed im favor of clerks in holy orders, was
gradually extended to all persons who were able to read: and,
indeed, in the case of a felon who was tried before Fortescue, the
prisoner was admitted to this privilege, although he could only
spell and so put syllables together. In the time of Edward VI.
a Statute was passed for extending the benefit of clergy to
noblemen who could net read. Inthe reign of Henry VII. and
more particularly of Henry VIII. benefit of clergy began to be
modelled by the Legislature into a new form, and to be used as
a distinction between offences and not between persons. The
subsequent history of this privilege, corresponds with the pro-
gressive improvement of trade and commerce in the Country.
(Reeves’s History of the Law. Edw. I. Edw. III. Hen. VI. Edn.
IV. Hen. VII. Hen. VIL. Barrington on 23 Hen. VIII. cap. 1.)
No restrictions appear to have been imposed on the privilege of
sanctuary until the reign of Henry VIII. Nor was this impo-
litic custom abolished till the time of James. (For an Account of
Sanctuaries in England, Archeol. Antig. Soc. Vol. VIII. Paston
Letters, Vol. II. Lett. 24. 8 Inst. 115.) The distinction between
thefts manifest, and thefts not manifest, is conspicuous in our
ancient jurisprudence: it is discernible in the Saxon Laws.
The old expression, “to be taken in the manner” is explained
by Barrington to mean “ detected with the thing holden in his
hand,” which is called in Bracton, ‘“ hand-habend,” and he
supposes that the terms infangthief and utfangthief have refer-
ence to the same distinction, but in this he is not supported by
the glossarists. Of the like nature are the divisions of offences
according to the Forest Law, ‘‘ Dog-draw, stable-stand, back-
bare, bloody-hand ;” and by the Halifax Gibbet Law, the
prisoner must have been taken hand-habend, or back-berend,
before he was subject to be tried and beheaded, according to the
singular custom of that place. (Wilkins’s Leges Anglosaxonie,
242. n. 6. 257. n. 9. Manwood, 193. Barrington on 1 Hen. VIII.
—On the Offence of Sakebere, 3 Inst. 69.) .The distinction be-
tween grand and petit larceny is found in the Saxon Laws: in
some ancient books of Crown Law, the value of twelve pence
without more is stated to make the offence a capital felony.
(Witkins’s Leges Anglosaxonice, p. 70. 259. n. t. Kelham’s Briton,
c. 15. n. 2.) An important change was taking place in the
principles of Criminal Law, at the period when Fortescue wrote
his treatise, by the gradual rejection of the old maxim of “vo-
luntas reputabitur pro facto;” and the practice was nearly
obsolete of punishing men for crimes which they had only
meditated, but had not actually committed. (Reeves’s History of

the

174

the Law, Hen. VI. Edw. IV. Year Book, 13 Hen. IV. 85, an
indictment for that “il gisoit depredando.” 9 Edn. IV. 28.) The
severity of punishment in cases of larceny inflicted by our
ancient laws did not produce the effect expected to be derived
from it. Fortescue in his Treatise on Monarchy, mentions that
' there were more men hanged in England for open robbery in a

ear, than in France during seven years, which he ascribes to
the “lack of heart” of the French people: it appears from the
Paston Letters, that the roads near London were much infested
with robbers. (Vol. II]. Lett. 64.) At a period of history
somewhat later, the distresses of the population arising from the
system of inclosures, and the dissolution of the religious houses,
led to the execution of such numbers of malefactors, as to affix to
those criminal laws, which are the subject of Fortescue’s com-
mendation, a very bloody and sippallttg vances Sper F.
More's Preface to the Utopia, “< fures nonnun inti
in und cruce,” Harrison's Description of Baten d in din Vol. I.
p- 182. et seq. where amongst other facts, it is said that Henry VIII
hanged threescore and twelve thousand.)

With respect to the remarks of Fortescue, concerning the
Civil Law in this Chapter, it is to be noticed, that a distinction is
observed by Justinian, between public and private crimes, the
latter class being such as besides the mischief to the public,
occasioned a particular damage to individuals. But, in addition
to the civil remedy, which was given to the party injured, there
might be a criminal prosecution for a private crime: accordingly
there were many punishments, other than of a pecuniary nature,
prescribed against theft by the Civil Law: and the different
circumstances under which theft might be committed, are defined
and provided for by the Civil Law with a precision in which~
our own laws were long deficient. (Wood's Inst. of the Civil
Law ; and see Lord Kaimes’s Tract upon Criminal Law.)

The comparison between our Municipal Laws, and those of
Rome, and other countries, is further pursued by several
English writers. (Fulbecke’s Parallel between the Civil Lan,
Canon Law, and Law of the Realm of England, published a. dD.
1618. Dr. and Student, Dial. ii. c. 45.)

175

CHAP. XLVII

—p—

Prince. 1 tTHinx indeed that it requires no
great labour or study, to determine these two points.
For though in England felons of all sorts are every
where punished with death; yet they still go on in
defiance of all laws to the contrary: and, how
much less would they abstain, if only a gentler pu-
nishment were threatened and inflicted? As for those
who have obtained their freedom, it would be hard
if they should always live under the lash, as it were ;
and, in fear of being again reduced to a state of
slavery ; especially upon the pretence or colour of
ingratitude, since pretences of this kind could never
be wanting; the several instances and species of
ingratitude being innumerable. ‘“ Human nature, in
ease of liberty, demands greater favours than is
usual in other cases.” But, my good Chancellor,
not to enter into the disquisition of any more cases
of this sort, I beg you to inform me why the Laws
of England, which are so useful, so beneficial and
desirable, are not taught in our Universities, as
well as the Civil and Canon Laws, and why the
degrees of Bachelor and Doctor are not conferred
upon the Common Lawyers, as is usually bestowed
on those who are educated in other parts of learn-
ing’.

* Queen Elizabeth addressed the University of Cambridge in
Latin, after being informed, that nothing was allowed to be said
openly to that learned body in English. Her speech is given
in Peck’s desiderata curiosa; the commencement of it is in ,the

following terms: “Etsi foeminilis pudor, clarissima Academia
subditique

<

176

subditique fidelissimi, in tanta doctorum turba inelaboratum
hunc sermonem et orationem me prohibet apud vos narrare, &c.”
(See respecting the Injunctions for speaking Latin in private Col-
leges, by the Charters of Foundation, Fuller’s Worthies, p. 222 ;
and the Life of Waynfleete.) An arrangement of the Common
Law was made by Dr. Cowell, after the model of the Institutes
of Justinian, and written in the Latin language, with the pro-
fessed view, that in the Universities where the Civil Law was
studied, the transition might be rendered more easy to an ac~-
quaintance with the Municipal Law. Blackstone, in his Com-
mentaries, speaks of the reason given in the text for the neglect
of the Law of England in our Universities, as being unsatis-
factory; and he attributes the circumstance to the jealousy
entertained of the Municipal Law, by the Popish Clergy.

It can scarcely be doubted; that if the system of education,
adopted at the Universities, were to be modified with the
peculiar view of forming the mind and character of the future
lawyer, it ought to undergo material alterations. It would
embrace a more extensive range of acquirements, and ‘would
comprise the historical occurrences of modern, not less than of
ancient, times. Whereas at present by every deviation from the
pursuit of classical, or mathematical knowledge, the student
makes a sacrifice of his prospects in the University, and of
academical fame. The object of a lawyer’s acquaintance with
the abstract sciences, and the writers of antiquity, is to learn
to think with propriety, and to act with magnanimity, in the
circumstances of life, in which his profession may place him ;
and to acquire the art of expressing his sentiments with preci-
sion, simplicity, and good taste. It is not to excel in the
legerdemain of the analyst, or to acquire a pre-eminent know-
ledge of tongues. In this view it is thought, that much of the
attention which the ambitious student in the University devotes
to his Greek, his Latin, or his Mathematics, might be better
directed; at the same time, without his abandoning the inesti-
mable advantages which a lawyer may reap from those important
studies. However, constituted as the system of Prsk: pah 75
education at present is, the future lawyer is employed at the
University during the period of life usually spent there in a
manner infinitely more advantageous than in the receptacles of
an attorney’s or a_ special pleader’s office, where the arts of
litigation, and not the precepts of Justice are inculcated: In the
Universities the student will find leisure and encouragement to
prepare himself for the exercise of his profession, by climbing up
to the “vantage ground,” so my Lord Bacon calls it, of science ;
instead of grovelling all his life below, and finishing his mean,
though gainful career, by ultimately attaining to the character
of the pettyfogger, described by Cicero: “ Leguleius quidam
cautus, et acutus preco actionum, cantor formularum, auceps
syllabarum.”

CHAP. XLVITI.

Chancellor. In the Universities of England
the sciences are taught only in the Latin tongue,
whereas the Laws of England are writ in, and made
up of, three several languages, English, French and
Latin. English, as the Common Law has mostly
prevailed, and been used among them; a great part
of it being derived down from the old inhabitants,
the Angles. French, because the Normans upon
the coming in of William, called the Conqueror,
and getting possession of the kingdom, would not
permit our lawyers to plead but in that language
which they themselves knew, and which the advo-
cates of France use in their pleadings, and in their
Parliaments. In like manner the Norman-French,
after their coming into England, would not pass any
accounts of their revenues, save in their own native
language, lest they should be imposed upon: even
in their exercises and diversions, as hunting, dice,
tennis, &c. they observed the same method: whence
it has happened, that the English, from such their
frequent intercourse with the French have given in
to the same custom; and to this very day, in their
diversions, and their accounts, they speak: French :
in the Courts of Justice they formerly used to plead
in French, till in pursuance of a Law to that: pur-
pose that custom was somewhat restrained, but not
hitherto quite disused; first, by reason of certain
law terms, which the pleaders express more aptly
in French than in English: in the next place,

M

178

because Declarations upon Original Writs cannot be
formed so properly and agreeably to the nature of |
those Writs as in French, in which language the -
forms of such Declarations are learned and prac-
tised. Again, all pleadings, arguments and resolu-
tions, which pass in the King’s Courts are digested
into books for the information of the young students,
and are reported in the French tongue. Many Aets
of Parliament are penned in French, from whence
it comes to pass that the modern French is not the
same with that used by our lawyers in the Courts of
Law, but is much altered and depraved by common
use: which does not happen to the Law-French used
in England, because it is oftener writ than spoken:
as to the Latin, all Original and Judicial Writs, all
Records in the King’s Courts of Justice, and some
Acts of Parliament are penned in that language.
Wherefore the Laws of England being learned and
practised in those three several languages, they cannot
be so well studied in our Universities, where the
Latin is mostly in use: but, they are studied in a
publick manner and place, much more commodious
and proper for the purpose, than in any University.
It is situated near the King’s Palace at Westminister,
where the Courts of Law are held, and in which the
Law-Proceedings are pleaded and argued, and the
resolutions of the Court, upon cases which arise, are
given by the Judges, men of gravity and years, well
read and practised in the laws, and honoured with
a degree peculiar to them. Here, in Term-Twne,
the students of the law attend in great numbers, as
it were to publie schools, and are there instructed in
all sorts’ of Law-Learning, and in the practice of
the Courts: the situation of the place, where they
reside and study, is between Westminster and the
city of London’, which, as to all necessaries and

: In the ancient ballad called the London Lyckpenny, written
in the reign of Henry VI. are related the mortifications and dis-
; tresses.

179

conveniences of life is the best supplied of any city
or town in the kingdom: the place of study is not
in the heart of the city itself, where the great con-
fluence and multitude of the inhabitants might dis-
turb them in their studies; but in a private place,
separate and distinct by itself, in the suburbs, near
to the Courts of Justice aforesaid, that the students,
at their leisure, may daily and duly attend, with the
greatest ease and convenience”.

tresses of a person who came to London to obtain the redress
of an injury, without any money in his pocket: he is, made
to relate his adventures, and in the course of them, he gives
a minute and curious description of the appearance of London,
and Westminster, at the time when Fortescue lived.

» The Statute of the 36 Edward III, referred to in the text,
has a singular recital, “that the king, nobles, and others, who
have travelled in divers regions and countries, have observed,
that they are better governed by the laws, being in their own
tongue.” The recital of the 18 Edward III. St. 11, which is
written in French, contains a most extraordinary complaint of
the attempts of the King of France, to destroy “the English
tongue.” (Barrington on 18 Edw. III. where see some conjectural
emendations of the passage; and Barrington on 36 Edw. III.)
Fortescue repeats part of a passage from Holcot, in which that
writer states the Conqueror, from a motive of policy, to have
effected a material change in the national language, by means of
an ordinance, made for adopting the French, in public proceed-
ings, and for its being taught im all the schools. The authority
of Holcot, which has been generally followed by subsequent
writers, has been impugned by Mr. Luders, in a learned tract,
«On the Use of the French Language, in our ancient Laws, and
_ Acts of State.” And he has collected a multitude of valuable
particulars, to shew the common use of the Latin, by the Nor-
mans, as well in their own country, as after their arrival in
England, and likewise on the occasion of their conquests in
Sicily. It is certain, that as early as in the time of .Edward
the Confessor, the French language was much prized in this
Country. And it would seem, ai about the time of Henry II,
the use of it was more general, than at any preceding period,
among the higher classes of society, whereas the lower orders,
appear never to have abandoned their vernacular tongue. During
the interval, of about thirty years, which preceded the accession
of Henry III, the formation of the English language seems to
have taken its rise. A version of Wace’s poem of Brut, written
in the reign of Henry II, by one Layamon, a Priest, is supposed

to

M 2

180

to exhibit the chrysalis of our language. The earliest Englislt
instrument, known to exist, is said to bear the date of 1343.
Rymer contains one of the year 1385. Sir J. Mandeville, about
1350, has been considered the father of English Prose. In the
time of Richard II, the English began to supplant the use of
French, in the elementary instruction of schools, a change which:
has. perpetuated the names of the persons who first. introduced it-
(Tyrwhitt’s Essay on Chaucer, Ritson’s Dissertation on Romance,
Warton’s History of .English Poetry. Ellis’s Specimens of early
English Poetry, Johnson's Preface to his Dictionary. Verstegan’s
Decayed Intelligence, Hallam’s' Middle Ages, ch. 9. Turner's
History of England, Part VI. ch. 1,2. Madoa’s Exchequer, p.
122, 123, and Disquisition on the Romanic, or bastard Latin in
the Preface to the History of the Exchequer.) Upon this subject,
the observations of Mr. Luders are vabtiatte as pointing out the
difference subsisting between the Norman and French languages,
im the eleventh century. With respect to the use of French in
Parliamentary and legal proceedings, it has been suggested by
Barrington, that the circumstance of a standing committee in
Parliament, being appointed to receive petitions from France,
might have been the cause of the Parliamentary proceedings
being usually entered in that tongue, a practice which ceased
about the time of. this Country being dispossessed of its French
colonies.. The first Act in our Statute Book, in the French
language, is the 51 Hen. III; and Luders remarks, that the
earliest ordinances both of France and England, promulgated in
that language, are nearly contemporary. The first instance of
the use of English, in any parliamentary proceeding, is in the
36 Hen. III. The challenge of the Crown, by Hen. IV, and his
thanks after the allowance of his title, are recorded in English,
which is called his maternal tongue; and English appears occa-
sionally in Parliamentary proceedings, during the reigns of Hen.
IV, and Hen. V. In the reign of Henry VI, the petitions and’
bills of Parliament are frequently in English, and sometimes
the answers also: but the Statutes continued to be in Latin and
French: The last Statute wholly in Latin on record is the 33°
Hen. VI, the last portion of any Statute in Latin, is the 39 Hen.
VI. c. 2. The publication of Statutes in English, is believed to
have begun with the commencement of the reign of Hen. VII,
and at least from the fourth year of Hen. VII, to the present
time, they have been universally in English. (Report of the
Commitice, for the Inspection of the Public Records. Barrington on
51 Hen. III.) With respect to ‘the use of French in legal pro-
ceedings, Blackstone says, that it preceded the use of Latin in
the entry and enrollment of Pleas: this statement appears to be
incorrect. (On the Language of Declarations, Tem. Edw. I.
Edm. IV. Reeves c. 16.23. On that of the Record, Stephen on
Pleading, Appx. n. 14. and during the period from Rich. rae

. Edw. IT.

1Si

Edw. II. the Placitorum Abbreviatio.) The Statute of Edw. III.
did not apply to the language of records, and the lawyers for
« long time afterwards continued to take their notes in French,
and such is mentioned to have been the practice of Lord Keeper
Guilford, when at the bar. In North’s Treatise on the study of
the law, it is said that the law is “scarcely expressible properly
in English, and when it is done it must be Frangois, or very
uncouth.” Sir P. Yorke, afterwards Lord Hardwicke, in the
reign of George II, was the first Serjeant that counted in Eng-
lish. (Wynne’s Degree of Serjeant, p. 104. North’s Life of Lord
Keeper Guilford. And see in the Preface to Croke Charles, Sir H.
Grimston’s Apology for not Publishing that Work in “its Native
Idiom, the proper and peculiar Phrase of the Common Law.”
And see further on the derivation of our legal language and
forensic usages from the French, Stephen on Pleading, Appz.
n. 30. 59. Craig. Jus. Feud. lib. i. p. 7.) Whitelock details
in his Memorials a very learned speech, which was delivered
on the ‘occasion of the proposition, made to the Commonwealth
Parliament, for translating all the books of the law, and the
proceedings of the Courts of Justice, into the English tongue ;
besides much legal and antiquarian knowledge, it contains
many sensible remarks on the policy of the measure, and
concludes with an exhortation to the Commons, for passing the
bill, expressed in a masterly strain of eloquence. An ordinance
which was the consequence of this proposition, passed a. p. 1650,
but was annulled at the Restoration, its expediency however was
felt.and recognized by the legislature of George II. Blackstone
has questioned the propriety of this alteration in the language of
our judicial proceedings, and has supported his opinion by some
arguments which have exposcd him to the just censure and
ridicule of Mr. Bentham. (Fragment on Government.)

With respect to the vestiges of the French language, preserved
in some particular instances, mentioned by Fortescue, Madox,
amongst his arguments, te prove that the Exchéquer was an
institution of the Conqueror, states that most of the solemn and
emphatic words employed in the business of the Exchequer, are
of Norman origin, and that most of the terms of the Forest Law,
used in the Exchequer, are derived from the same source. The
fact of the general practice of keeping accounts in French, is
called in question by Luders, who refers to instances, occurring
in the twelfth century, of accounts being kept in Latin. (And
see Henry's History, Vol. VI. p. 90.) Barrington in his obser-
vations on the 51 Hen. III, relates several particulars which
shew the. derivation of our terms of sporting, cookery, and
heraldry, from the French. (See also on the Antiquity of Forests,
and the Etymology of the word Purlieu, Herne’s Cur. Disc. Vol. 1.
p-.118. Vol. II. p. 380. On the Hunting of the Britons and Saxons,
Archeol. Antig. Soc. Vol. XV.)

182

CHAP. XLIX.
—>—

Bur, my Prince, that the method and form of
the study of the law may the better appear, I will
proceed and describe it to you in the best manner
{ can. There belong to it ten lesser inns, and
sometimes more, which are called the Inns of Chan-
cery: in each of which there are an hundred students
at the least; and, in some of them, a far greater
number, though not constantly residing. The stu-
dents are, for the most part, young men; here they
study the nature of Original and Judicial Writs,
which are the very first principles of the law*: after

@ Sir E. Coke observes that students seeing the singular use
of original writs, will, in the beginning of their study, learn
them, or at least the principal part of them, without book, and
he points out the advantages resulting from such a practice.
In several of the prefaces to his reports, he appears particularly
anxious to refer the antiquity of the writs of the Common Law
to a period antecedent to the Conquest: Other writers of equal
or greater authority upon this subject suppose the introduction
of them to have been coeval with the establishment of the Curia
Regis, when causes came to be decided before a tribunal, at a
distance from the litigating parties, which was otherwise in the
Saxon County Courts. (Hickes’s Diss. Epist. p. 8. Madox’s Ex-
cheq. p. 63. Reeves’s History of the Law, c. 2. . Stephen on Plead-
ing, Appa.n. 2.) The great Saxon scholar Hickes speaks with
much contumely of Coke’s learning respecting the times before
the Conquest, and calls him “in re forensi antiquaé minus versa-
tum,” “in patrie suze antiquis consuetudinibus et constitutio-
nibus avitis hospitem.” (Diss. Epist. p. 8. 49.) After the Statute
of Westminster the second, writs became a part of the study of
the law. The Masters in Chancery,.to whom the business of
preparing writs had been before confined, gradually relinquished
all concern in respect of them, and their forms came to
settled by lawyers of eminence: by the printing of the ai

e

183

they have made some progress here, and are more
advanced in years, they are admitted into the Inns
of Court, properly so called: of these there are four
in number. In that which is the least frequented,
there are about two hundred students. In these.
greater inns a student cannot well be maintained
under eight and twenty pounds a year: and, if
he have a servant to wait on him (as for the most
part they have) the expence is proportionably more:
for this reason, the students are sons td persons
of quality ; those of an inferior rank not being able
to bear the expences of maintaining and educating
their children in this way. As to the merchants,
they seldom care to lessen their stock in trade by
being at such large yearly expences. So that there
is scarce to be found, throughout the kingdom, an
eminent lawyer, who is not a gentleman by birth
and fortune ; consequently they have a greater re-
gard for their character and honour than those who
are bred m another way. There is both in the Fans
of Court, and the Inns of Chancery, @ sort of an
Academy, or Gymnasium, fit for persons of their —
station; where they learn singing, and all kinds

‘the knowledge of writs was rendered publici juris, and they
formed a most essential part of a lawyer’s information, because
during the prevalence of real actions, recourse was had to the
learning contained in them at every turn and stop of the pro-
ceedings. (Concerning Writs, and the Antiquity of the Registrum
Brevium, Co. Litt. 73. 6. Nichols. Eng. Histor. lib. 215. Jehu.
Webb's Case, 8 Rep, Of a register in the time of Hen. EH. in
Coke’s possession. Plowd. 7. Barr. on Statutum, Wallie and
Reeves’s History of the Law, Henry VIII, where see a compa-
rison between the Writs of the printed Register, and those in the
several antecedent periods of our Law.)

» In addition to the remarks on the value of money in a
former page, it is to be noticed, that some useful observations
on this subject occur in the ninth Chapter of Hallam’s Middle
Ages; this writer considers that sixteen will be a proper
multiple when we would bring the general value of money,
in the reign of Henry VI, to our present standard. (And see
Sir F. Eden’s Tables. Lord Lyttleton’s Hen. II, v. 1. p. 470.
et seq. Bl. Comm. vol. I. p. 173. vol. IV. p. 238. n.)

_ 184

of music, dancing and such other accomplishments
and diversions (which are called Revels) as are
suitable to their quality, and such as are usually
practised at Court. At other times, out of term,
the greater -part apply themselves to the study of
the law®. Upon festival days, and after the offices

© The account given by Fortescue of the legal profession
in the time of Henry VI, has occupied a considerable space in
the treatises of all the authors, who have written upon the
subject of legal Antiquities, since his time. The antiquities
of the Inns of Court, and of Chancery, are the subjects of
several papers in Herne’s Curious Discourses; and Dugdale
has investigated them in his Origines Juridiciales. It may be
collected, that societies of lawyers began to have permanent
residences soon after the Court of Common Pleas was directed
to be held in a fixed place, to which. circumstance, or to the
abolition of the law schools in London, in the nineteenth year
of Henry III, the institution of these societies is ascribed, by
Blackstone. Lawyers were established in the Temple, in the
reign of Edward III, when they held the place as the tenants’
of the Hospitalers, on whom the possession of the estates of the
Knights Templars had devolved. An idea of the nature of
the studies anciently pursued in the Inns of Court, may be
formed from the very minute account which is given in
Dugdale, of the exercises, mootings, and readings: and many
details of an interesting nature, upon the same subject, are
found in North’s Life of Lord Keeper Guilford: the biographer
supposes his Lordship to have been one of the last persons
who read in the Temple in the ancient spirit of the institution,
and complains that the exercise had, since his time, dwindled
into a revenue; which circumstance he ascribes to the ex-
travagant expences that the readers formerly incurred in the
feasts, which it was incumbent on them to give. Coke describes
the nature of ancient readings, which he laments had greatly
degenerated in his day; he says they had become rather riddles
than lectures, and he compares the readers to lapwings, who
seem to be nearest their nests when they are farthest from them,
and whose study was to find nice evasions out of the Statute.
(Co. Litt. 280. a. For some interesting circumstances connected
with the readings of Sir T. More, Wordsworth’s Eccl. Biog. ;
—respecting Bagshawe’s Reading, Tem. Car. 1. Whitel. Mem.
p- 31, For directions upon the subject of Readings, Bacon's
Introduction to his Reading upon the Statute of Uses. For a
curious and valuable specimen of an Ancient Reading, Callis
upon Sewers.)
The

185

of the church are over, they employ themselves in
the study of sacred and prophane history: here
every thing which is good and virtuous is to be
learned: all vice is discouraged and banished. So
that knights, barons, and the greatest nobility of
the kingdom, often place their children in those
Inns of Court; not so much to make the laws their
study, much less to. live by the profession (having
large patrimonies of their own) but to form their
‘manners and to preserve them from the contagion
of vice. The discipline is so excellent, that there
is scarce ever known to be any picques or differ-
ences, any bickerings or disturbances amongst

The most minute details are furnished by Dugdale, respect-
ing the ancient Revels, grand Christmasses, Banqueting Nights,
and amusements of the Inns of Courts, and the comic personages
who acted conspicuous parts on these occasions, as! the Lord of
Misrule, the King of Cocknies, and Jack Straw, together with the
' master of the game, who was appointed by the Lord Chancellor,
after hearing a plausible speech in his favor from the Common
Serjeant, and who introduced a Fox and a Cat to be killed
by Dogs beneath the fire. As to the lighter accomplishments,
which Fortescue mentions to have been taught in the Inns of
Court, Sir Christopher Hatton first obtained Queen Elizabeth’s
favor, by his appearance in a masque prepared by the lawyers.
(Naunton’s Fragmenta Regalia, and see Gray's Long Story.)
Saunders excelled on the harpsichord, and Lord Keeper
Guilford was a perfect musician. We read that in the reign
of James, barristers were put out of Commons by decimation,
for the offence of neglecting to dance before the Judges. Sir
J. Davis wrote a composition in lyric verse, entitled “ Orchestra,
or a poem expressing the antiquity and excellency of dancing.”
Lord Bacon, who composed an essay upon the subject of
masques, regrets in his letters the failure of a project, to prepare
a joint masque by the four Inns of Court, in honor of Queen
Elizabeth. A masque, the result of the united exertions of
these learned societies, was, however, brought about in the
reign of Charles I. Among the Committee for arranging this
splendid pageant, will be seen the names of Selden, Whitelock,
Hyde, Finch, Herbert, Noy ; and it is said, by the historian, to
have been a pleasure to them. The animated description which
is given of this masque in Whitelock’s Memorials, will always
be read with great interest, as affording a characteristic ex-
hibition of the manners of the age.

186

them. The only way they have of punishing de-
linquents, is by expelling them the society: which
punishment they dread) more than criminals do
imprisonment and irons: for he who is expelled
out of one society, is never taken in by any of the
other. Whence it happens, that there is a constant
harmony amongst them, the greatest friendship and a
general freedom of conversation. I need not be parti-
cular in describing the manner and method how the
laws are studied in those places, since your Highness
is never like to be a student there. But, I may say
in the general, that it is pleasant, excellently well
adapted for proficiency, and every way worthy of
your esteem and encouragement. One thing more
{ will beg leave to observe, viz. that neither. at
Orleans, where both the Canon and Civil Laws
are professed and studied; and whither students
resort from all parts; neither at Angiers, Caen,
nor any other University in France (Paris ex-
cepted) are there so many students, who have past
their minority, as in’ our Inns of Court, where the
natives only are admitted.

4 Great caution seems formerly to have been observed in
admitting persons as members of the Inns of Court, whose
rank in society, and whose education was not a guarantee for
the propriety of their conduct. There is extant an order of
King James, signed by Sir. E. Coke, Lord Bacon and others,
that none but gentlemen by descent should be received.
(Dugdale’s Origines, p. 316.) The study and practice of the
. law may in themselves be considered as materially influencing
the intellectual, the moral, and political character of the in-
dividual. This is a subject which does not admit of being more
than merely adyerted to, in the compass of a note. It ma
however be mentioned, that Lord Bacon recommends the study
of the law as a remedy for some particular defects in the mental
powers: and Burke speaks of it as a science which does more
to quicken and inyigorate the understanding, than all the other
kinds of learning put together.—And if it be on some occasions
the duty of a Barrister to advocate a cause which in his judg-
ment is not founded upon right, or to advance arguments of
the solidity of which he is not persuaded, yet such a line of
conduct will not, although it be examined according to the

strictest

187

strictest philosophical principles, appear repugnant to the moral
feelings. (For the opinions of the Stoic Panetius and Cicero,
Cic. de Off. lib. ii. c. 14. and see Preface to Sir. J. Davis's
Reports. For an indictment against a Counsel charged with
taking fees on both sides of a cause, Tremaine P. C. p. 261.
and Stat. West. I. c. 9. prohibition against Serjeants at-
tempting “pur enginer le Court, ou la partie.\—In examining
the political conduct of lawyers, it will be observed, that as
their professional studies lead them to take a nea? view of
the excellencies of the Constitution, so they have been ac-
tuated by a powerful impulse to foster and vindicate it.
Accordingly, this Country is deeply indebted to the members
of the legal profession, for the preservation of its most valued
liberties. Bracton and Fortescue are the earliest authorities
in favor of our national freedom. The first conspicuous in-
stance of a Commoner opposing in Parliament the arbitrary
will of the Crown, was afforded by Sir Thomas More. And
in the next reign, when Wolsey came with great mag-
nificence to the House of Commons, in order to overawe the
members into granting a parliamentary aid, he met with an
inflexible resistance from the same intrepid lawyer. (Words-
worth’s Ecclesiastical Brography. FEllis’s Original Letters, Vol. I.
p- 220.) How much of the wisdom with which the petition
of Right was framed, and of the resolution with which it was
forwarded, is owing to the learning, sagacity, and intrepidity, of
Coke and of Selden. How great a part of the merit of the
Bill of Rights, and of the spirited publications which prepared
the minds of men for the Revolution, is due to Lord Somers.
The Restoration might have been a national blessing, if the
limitations upon the power of the Crown, which were pro-
posed by Sir M. Hale, had been appreciated and enforced.
An attempt was made in the time of the Commonwealth,
to exclude lawyers from sitting in the House of Commons.
A similar project had been contrived in the reign of Edward III,
but it does not appear to have been acted upon until that of
Henry IV, and the Parliament in which it was adopted has been
called in derision the “ Parliamentum indoctum,” or the “lack-
learning Parliament.”. Whitelock has rélated, in his Memorials,
a distinguished speech, which was delivered on the occasion
of the debate upon this subject, tending to shew “that those
in power had most reason to be displeased with this profession,
as a bridle to their power.” (Whitel. Mem. p. 415. 4 Inst. 48.
And see Introduction to Brodie’s British Empire, p. 63. upon a
remarkable mistake of Prynne and Whitelock, in citing a passage
JSrom Walsingham, respecting the “ Parliamentum indoctum.”)—
Hume has made a reflection, how much the history of this
Country is indebted to four great men, who held the highest
stations in the law, More, Bacon, Clarendon, Whitelock. One

of

188

of which number stands pre-eminent above the rest of mankind,
whether in the annals of ancient or modern philosophy: whilst
the cultivators of literature ard the arts, will always revere,
in Sir Thomas More, the bosom friend of Erasmus, and the
patron of Holbein; the man on whom was passed the merited
eulogium—*“ Pectus omni nive candidius, ingenium quale Anglia
nec habuit unquam, nec habitura est, alioquin nequaquam in-
felicium ingeniorum parens.” . (Erasm. lib. 29. Epist. 42.) The
literary taste of this Country derived no unimportant benefit
from Lord Somers, when he liberally supplied Addison: with
the means of completing his education, and enabled him to
make the tour of Italy. (And further on Lord Somers’s Character,
Walpole’s Noble Authors, Addison’s Freeholder, No. 39. Smift's
Dedication to the Tale of a Tub, also the Four Last Years of
Queen Anne. Hickes’s Diss. Epist. on the Saxon Etymology of the
word Somers, “maximum et clarissimum.) The muse of Pope
never speaks with more feeling to the heart, than when ex-
cited by the kindred genius of his Templar friend, whose
judicial and senatorial talents, and whose “hundred arts re-
fined” were equally “known and honored.”—Doubtless it would
be easy to point out several defects in the mental qualifications
of lawyers which may fairly be considered as resulting from
their professional studies and habits. This is the natural con-
sequence of the mind becoming addicted to any one particu-
lar pursuit ; and as such it engaged the attention of Lord Bacon
in his. celebrated work on the advancement of learning, in
which he treats of these impediments to knowledge under
the appellation of “idola tribus.” Moreover the allurements
of profit and ambition make it more necessary for an English
Barrister, than for a person placed in any other class of society,
to regard their seductive influence in the. light in which the
great philosopher, whose writings have just been referred to,
has viewed them, that they are “the golden ball. thrown
before Atalanta, which while she goeth aside, and stoopeth
to take up, the race is hindered.”

189

Bur, my Prince, since you are so desirous to
know, wherefore, in the Laws of England, the
degrees of Bachelor and Doctor are not conferred,
as in the professions of the Canon and Civil Law
in our Universities; I would give you to understand,
that though in our Inns of Court there be no de-
grees which bear those titles; yet there is in them
conferred a degree, or rather an Honorary Estate,
no less celebrated and solemn than that of Doctor,
which is called the degree of a Serjeant at Law, it
is conferred in the following manner.

The Lord Chief Justice of the Common Pleas,
by and with the advice and consent of all the Judges,
is wont to pitch upon, as often as he sees fitting,
seven or eight of the discreeter persons, such as
have made the greatest proficiency in the general
study of the laws, and’ whom they judge best qua-
lified. The manner is, to deliver in their names
in writing to the Lord High Chancellor of England ;
who, in virtue of the King’s Writ, shall forthwith
command every one of the persons so pitched upon,
that he be before the King, at a day certain, to take
upon him the state and degree of a Serjeant at Law,
under a great penalty, in every one of the said
Writs specified and limited.

At which day, the parties summoned and ap-
pearing, each of them shall be sworn upon the holy
Gospels, that he will be ready, at a further day and
place to be appointed, to take upon him the state

190

and degree of a Serjeant at Law, and that he shall,
at the same time, give gold, as, according to the
custom of the realm, has in such cases been used
and accustomed to be done. How each is to behave
and demean himself, the particulars of the ceremony,
and manner how these estates and degrees are to
be conferred and received, I forbear to insert; it
will take up a larger description than consists with
such a succinct discourse: besides, at other times,
I have talked it over to you in our common con-
versation. But I desire that you should know, that,
at the time and place appointed, those who are so
chosen, hold a sumptuous feast, like that at a Coro-
nation, which is to continue for seven days together:
neither shall any one of the new-created Serjeants
be at a less expence, suitable to the solemnity of
his creation, than two hundred and sixty pounds,
and upwards, whereby the expences in the whole,
which the eight will be at, will exceed three
thousand two hundred marks.—To make up which,
one article is, every one shall make presents of
gold rings to the value, in the whole, of forty
pounds (at the least) English money.. I very well
remember, when I took upon me the state and
degree of a Serjeant at Law, that my bill for gold
rings came to fifty pounds. Each Serjeant, at: the
time of his creation, gives to every Prince of the
Blood, to every Duke, and to each Archbishop,
who shall be present at the solemnity, to the Lord
High Chancellor, and to the Treasurer of England:
to each a ring of the value of twenty-six shillings and
eight pence ; to every Earl and Bishop, to the Keeper
of the Privy Seal, to each Chief Justice, to the Chief
Baron of the King’s Exchequer, a ring’ worth
twenty shillings; and to every other Lord of Par-
liament, to every Abbot and to every Prelate of
distinction, to every worshipful Knight, then and
there present, to the Master of the Rolls, and to
every Justice, a ring to the value of one mark;

i9f

to each Baron of the Exchequer, to the Chamber-
lains, and to all the great men at Court then in
waiting on the King, rings of a less value, in pro-
portion to their rank and quality: so that there will
not be the meanest clerk, especially in the Court
of Common Pleas, but that he will receive a ring
convenient for his degree. Besides, they usually
make presents of rings to several of their friends
and acquaintance. They give also liverves of cloth,
of the same piece and colour, which are distributed
in great quantities, not only to their menial ser-
vants, but to several others, their friends and
acquaintance, who attended and waited on the
solemnity of their creation; wherefore, though in
the Universities, they who are advanced to the
degree of Doctors are at no small expence at their
creation, in giving round caps, and other con-
siderable presents: yet they do not give any gold,
or presents of like value; neither are at any ex-
pences in proportion with a Serjeant at Law. There
is not, in any other kingdom or state, any particular
degree conferred on the practisers of the law as
such ; unless it be in the kingdom of England.
Neither does it happen, that in any other country,
an Advocate enriches himself so much by his prac-
tice asa Serjeant at Law. No one, be he never
so well read and practised in the laws, can be made
a Judge in the Courts of King’s Bench, or the
Common Pleas, which are the supreme ordinary
courts of the kingdom, unless he be first called to
be a Serjeant at Law: neither is any one, beside
a Serjeant, permitted to plead in the Court of
Common Pleas, where all real actions are pleaded:
wherefore, to this day, no one hath been advanced
to the state and degree of a Serjeant at Law, till
he hath been first a Student, and a Barrister, full
sixteen years: every Serjeant wears in Court a
white silk coif, which is a badge that they are
graduates in law, and is the chief ensign of habit

192

with which Serjyeants at Law are distinguished at
their creation. Neither shall a Judge, or a Ser-
jeant at Law, take off the said coif though he be
in the Royal Presence and talking with the King’s
Majesty. So that you will easily believe, most
eacellent Prince, that those laws which are so
honoured and distinguished beyond the Civil Laws,
or those of any other kingdom whatsoever, and the
profession whereof is attended with so much solem-
nity and magnificence, are in themselves exceeding
valuable, excellent and sublime, full of knowledge,
equity and wisdom’*. !

@ In Fleta, the practisers of the law are enumerated under
the classes of Servientes, Narratores, Attornati, and Apprenticii.
They are ranked under various other denominations by sub-
sequent writers, and there has been a difference of opinion
respecting the meaning of several of the distinctions. (Reeves’s
History of the Law, ch. 11, 30. Preface to the third Report.
On a supposed distinction between Narratores and Servientes,
Reeves, ch. 11. between Barristers and Utter-barristers, Wynne's
Eunomus. _ Blount, Reeves, ch. 30. On the meaning of the term
Apprentice, and the difference between Apprenticit ad Legem, and
ad Barras, Barrington on 20 Rich. II. Dugdale’s Origines 143.
Mitchell's Case, Atk. Rep. vol. 1. Somners’s Gloss. ad X. Scrip-
tores. On the Antiquity of Advocates, Stephen on Pleading,
Appx. n. 8.

Thre Hides of Serjeant, which is the particular subject of For-
tescue’s remarks in this chapter, has been exalted by every cir--
cumstance with which erudition or eloquence could ennoble it, in
a speech delivered by Whitelock, and which is related in his
memorials. . The subject is treated of in the preface to the tenth
report, and it has received great embellishment from the orations’
which have been spoken at different times on the oceasion of
the creation of Serjeants. (See Wynne, on the Degree of Serjeant,,
p- 109. 65.) A writ for the call of Serjeants at law was con-
tained in the MSS. Registrum Brevium. Serjeants are noticed
by Bracton, and the title occurs in our records, as early as the
time of Edward the first. Whitelock mentions that a Serjeant
is addressed in the plural number in his writ, an honor which.
does not appertain even to Sheriffs. In Popham’s Reports is
contained a remarkable exhortation, delivered by the Chief
Justice to the newly created Serjeants, in which a sage ad-
monition is drawn from every minute peculiarity of their dress.
The research of legal Antiquarians has preserved a multitude
of curious facts, in addition to the particulars in the text, re-
specting the rings, mottos, feasts, and other matters a

wit

193

with the ancient degree of Serjeant at law. (Wynne’s Serjeant
at Law, p.75, Mottos, p.141, Rings, p.114, Feasts, Dug-
dale’s Origines, p. 41, et seq. Spelman’s Gise v. Serviens ad
legem. Mirror, ch. Des Conteurs et des Loveurs. Barr. on
14 Edw. III. Wynne’s Eunomus. Spelman, Gloss. v. Coifa.
On the Pillars of Panle’s Dugd. Orig. p. 117. Whitel. Mem.
p- 348. 9 Mod. p.9, and Life of Holt, for the Remonstrance
of Keeling, C. J. upon the Diminution in the weight of Rings.
On the sie aaa appointment of Serjeants, Tem. Henry V,
Reeves, c. 25. On the Removal of Dudley from the degree of
Serjeant, Biog. Britan. In Strutt’s Antig. a drawing of a Serjeant
in the Cotf and Robes of the time of Hen. VII.)

194

CHAP. LI.

Tuat you may likewise know the estate of the
Judges, as well as of the Serjeants at Law, I will,
in the best manner I can, lay before you the method
of their appointment, creation, and the nature of
their office. There are usually in the Court of
Common Pleas five Judges, stx at the most; in the
Court of King’s Bench four, and sometimes jive :
when any one of them dies, resigns, or is super-
seded, the King, with the advice of his council,
makes choice of one of the Serjeants at Law, whom
he constitutes a Judge, by his Letters Patents, in
the room of the Judge so deceased, resigning or
superseded: which done, the Lord High Chancellor
of England shall come into the Court where such
vacancy is, bringing in his hand the said Letters
Patents; when sitting on the bench, together with
the Judges of the Court, he introduces the Serjeant
who is so appointed to be a Judge; to whom, in
open Court, he shall notify the King’s pleasure
concerning his succession to the vacant office, and
shall cause to be read in publick the said Letters
Patents: after which, the Master of the Rolls shall
read to him the oath of office; when he is duly
sworn into his said office, the Chancellor shall give
into his hands the King’s Letters Patents, and the
Lord Chief Justice of the Court shall assign him
his place where he is to sit, and makes him sit down
in it. But you must know, my Prince, that the
Judge, amongst other parts of his oath, is to swear,

195

that he shall do equal law and execution of right
to all the King’s subjects, rich and poor, without
having regard to any person. Neither shall he
delay any person of common right, for the letters of
the King, or of any other person, nor for any other
cause, though the King by his express directions,
or personal commands, should endeavour to in-
fluence and persuade the contrary. He shall also
swear, that he shall not take by himself, or by
any other, privily, nor apart, any gift or reward
of gold, or of silver, nor of any other thing, the
which might turn him to profit, unless it be meat
or drink, and that of little value, of any man that
shall have any plea, or process, depending before
him, and that he shall take no fees, as long as he
be Justice, nor robe of any person, great or small,
in any case, but of the King himself. You are
to know moreover, that the Judge so created is
not to make any solemn entertainment, or be at
any extraordinary expence upon his accession to
his office and dignity; because it is no degree in
law, but oniy an office and a branch of magistracy,
determinable on the King’s good pleasure. How-
ever, from thenceforth, he changes his habit in
some few particulars, but not in all: for when
only a Serjeant at Law, he is clothed in a long
robe, not unlike the sacerdotal habit, with a furred
cape about his shoulders, and an hood over it, with
two labels or tippets: such as the Doctors of Law
use in some Universities, with a coif, as is above
described. But after he is made a Judge, instead
of the hood he shall be habited with a cloak, fasten-
ed upon his right shoulder; he still retaims the
other ornaments of a Serjeant, with this ex-
ception, that a Judge shall not use a party-coloured
habit, as the Serjeants do, and his cape is furred
with minever, whereas the Serjeant’s cape is always
furred with white lamb; which sort of habit, when
you come in power, I could wish your Highness
N 2

196

would make a little more ornamental, in honour of
the laws, and also of your Government. You are
to know further, that the Judges of England do
not svt in the King’s Courts above three hours in the
day, that is, from eight in the morning till eleven.
The Courts are not open in the afternoon. The
suiters of the Court betake themselves to the pervtse,
and other places, to advise with the Serjeants at
Law, and other their counsel, about their affairs.
The Judges when they have taken thew refresh-
ments spend the rest of the day in the study of
the laws, reading of the Holy Scriptures, and other
wnnocent amusements, at their pleasure: i seems
rather a life of contemplation than of much action:
their time is spent in this manner, free from care
and worldly avocations. Nor was it ever found
that any of them has been corrupted with gifts,
or bribes. And it has been observed, as an es-
pecial dispensation of Providence, that they have
been happy in leaving behind them immediate
descendants in a right line. “Thus is the man
blessed that feareth the Lord.” And I think it is
no less a peculiar blessing, that from amongst the
Judges and their offspring, {more Peers and great
men of the realm have risen, than from any other
profession or estate of men whatsoever who have
rendered themselves wealthy, illustrious and noble
by their own application, parts and industry. Al-
though the merchants are more in number by some
thousands; and some of them excel in riches all
the Judges put together. This can never be as-
cribed to mere chance or fortune, which is nothing ;
but ought to be resolved (I think) into the peculiar
blessing of Almighty Gop, who, by his Prophet,
hath declared, that ‘the generation of the upright
shall’ be blessed.” . And elsewhere the Prophet,
speaking of the righteous, says, “their children
shall be blessed.’ Wherefore, my Prince, be a
Jover of Justice, which maketh rich and honourable

197

which perpetuates the generation of those who love
her: in order to this, be a zealous lover of the Law,
which is the parent of Justice, that it may be said,
and verified of you, which is written of the righteous,

a 3:2

“Their seed shall endure for ever’.

* The Appendix to Heywood’s Vindication of Fox’s His-
tory contains an historical account of the tenure by which
Judges held their offices under the house of Stuart, together
with a list of most of those who were removed for political
causes. Several particulars. respecting the ancient patents of
Judges are mentioned in the notes of the Earl of Hardwicke,
which he prepared on the occasion of moving the address
upon the speech of His Majesty George III, respecting the
independence of the Judges. (Parl. Hist. Vol. XV. and see.
Speaker Onslon’s Note to Burnet, Vol. I. p. 12.) And many
interesting facts have been collected respecting the antiquity.
of Judges, their number at different periods, their dresses,
salaries, and other facts connected with their appointment.
(Dugdale’s Origines, 37, 38, 39, 40. Reeves’s History of the
Law, c. 8, 11, 16, 17, 25, 27; 30. Bl. Comm. Vol. Ill. p. 40.
Whitelocke’s Memorials, p. 344, 392. Archeol. Antig. Soc.
Vol. XVI, Petition in the time of Henry VI, by a Judge, for
an Increase of Salary. Selden’s Titles of Honor, Part If. c. 5,
concerning the Collar of SS. D’Israelis Cur. of Lit. 2 Series,
Vol. I. p. 298, Anecdote respecting the Collar of Sir E. Coke,
from the Sloane Manuscripts. On the Title of Capitalis Anglie
Justiciarius, assumed by Sir. E. Coke, Spelman, Gloss. v. Jus-
tictartus.) Inu many of the old reports, the resolutions of the
Judges are said to have been made “ ad mensam,” sometimes
“after dinner at Serjeants’ Inn.” The Pervyse is mentioned
in Chaucer,

A Serjeant of the law both ware and wise

That often had yben at the Porvyse.
Prol. Cant. Tales.

Selden considers the term to have an Oxford origin, being
a corruption cf Parvas, a name by which the scholars’ after-
noon exercises were called, to distinguish them from the
greater exercises of the Regent Masters. (See also Spelman, v.
Parve. On the Pervyse of Pamle’s, Reeves, c. 30, From a
Manuscript of the time of Hen. VIII.) In the Preface to the
second Report, Coke descants on the prosnerity of families who
have risen from the profession of the law: and he there refers
to a passage of Scripture which is cited by Fortescue.
(And see Philipps’s Grandeur of the Law. Popham44. Bacon’s
Works, Speech on taking his place in Chancery. Lord Thurlow’s

Reply

198

Reply to the Duke of Grafton, in Butler's Reminiscences. See
also concerning the dignity of Peerage, as connected mith the
situation of the Chief Justices of the King’s Bench, and of the
Pleas, considerations on the Law and Lawyers, published a. v.
1788.)

The History of this Country unhappily affords several ex-
ceptions to the encomium passed by Fortescue upon the inviolate
integrity of the Bench. The ancient book, entitled the Mirror
of Justices, contains many early examples of Judicial delin-
quency. And the National Justice has fallen with merited
severity upon the Judges of Edward I, and of Richard II, upon
Thorpe, Dudley, and Empson, Siroggs and Jeffries. (See the
Speech of the Archbishop of Canterbury upon the Judges of
Edward I, annezed to the Tract called “ The Security of English-
men’s Lives.” 2 Inst, ‘“ St. de Judaismo.” 3 Inst. “ Judicium de
corrupto judice.” And Lord Somers on Grand Juries, p. 223,
et seq. On Judicial Bribery, 2 Inst. 145, et seq. Selden’s Diss. ad
Fletam, “on the name of Fleta.” On the Judges of Rich. II. Petyt.
Jus. Parl. p. 182, 3 Inst.22. Barrington on 20 Rich. II. rae hee
Jeffries, Sheffield, D. of Buckinghamshire’s Thoughts on the
tion. Concerning the Judges of Edw. VI; Burnet on the Reformation,
Vol. II. K. Edw. Rem. p. 72. King Edw. Journal, ibid. p. 55, 56.
Latimer’s Sermons before the King. Paston Letters, Vol. U1. Lett. 2.
and see the State Trials.) Lord Bacon says that Henry VII. used
to boast of governing England by his laws, and his laws by his
lawyers: And Andrew Marvel exclaims with great truth against
the Judges appointed by the Stuarts, “that what French
counsel, what standing forces, what parliamentary bribes, what
national oaths, and all the other machinations of wicked men
had not been able to effect, was more compendiously acted by
twelve men in scarlet.” It would have been gratifying, if
history had not recorded even a solitary instance of judicial
corruption, occurring since the Revolution: and every admirer
of genius, every friend to the advancement of science, and the
improvement of rational man, must deeply lament to find the
name of Bacon in the list of Judges who have betrayed the
public confidence. The moral lesson which ought to be derived
from his fall, he has himself read to us. ‘‘ Hereafter,” he says,
in his speech to the Peers, “the greatness of a Judge or magis-
tate, shall be no sanctuary or protection of guiltiness, which,
in a few words, is the beginning of a golden world: the next
is, that after this example, it is like that Judges will fly from
any thing that is in the likeness of corruption, though it were
at a great distance, as from a serpent, which tendeth to the
purging of Courts of Justice, and the reducing them to their
true honor and splendor, and in these points Ged is my witness
that, though it may be my fortune to be an anvil whereupon
these good effects are beaten and wrought, I take no small

, comfort.”

199

comfort.” (Hargr. St. Tr. Vol. 11, and see Lord Bacon’s numerous
Letters respecting his own case, also North American Revien,
No. 39, and particularly respecting the inducements held out to
Lord Bacon by King James, to prevail upon him to waive his
defence, a piece called an Abridgment of Bacon’s Philosophical
Theory, in the Appendix of a nork entitled Mineral Productions,
written by Bushel, a person in Lord Bacon’s service, and cited in
the American Review.) It is consoling to turn from this me-
lancholy example of human frailty in the wisest and greatest
of inankind, to a venerable list of English Judges, who have
left behind them the brightest reputation for excellence, in ever
human virtue. At the head of these illustrious characters, stands
Sir Thomas More, conspicuous for his scrupulous anxiety to
avoid whatever might wear the least semblance of a bribe.
Neither has posterity held in less honor the name of Sir Matthew
Hale, distinguished for the high independence of his public life,
and his irreproachable integrity during the worst of times; who
kept the tribunals of justice, over which he presided, undefiled,
under the government of a flagitious King, and of a tyrannical
Commonwealth.

The perfect judicial character has been sketched more than
once, by the hand of a master. Lord Bacon, in his Essay on
Judicature, considers the duties of a Judge with reference to the
parties that sue, the advocates that plead, the clerks and ministers
of Justice underneath them, and the sovereign State above
them. In a speech to Justice Hutton, on his being called
to be one of the Judges of the Common Pleas, many admirable
rules are laid down for the direction of his conduct. And ina
letter which Lord Bacon wrote to the Duke of Buckingham, and
which is published in the Cabala, he communicates some va-
luable remarks respecting the selecting of Judges. Neither is
the portraiture of the judicial character described in a more
degenerate tone of feeling by Lord Commissioner Whitelock,
in his speeches to the parliamentary Judges, during the time
of the Commonwealth. (Whitel: Mem. p. 344, 392. See also
Lord Bacon’s Speeches to Sir J. Denham, and to Sir W. Jones,
and to the Judges before the Summer Circuit ; and see Hobbes’s
Leviathan, c. 26. Preface to the fourth Report. Letter of
Lord Burleigh on the Choice of Judges, Peck’s Desid. Cur.
Vol. I. p. 182. Moore's Rep. p. 116, Chancellor Bromley’ s
Opinion on the Requisites to be observed by Judges in Judgments
on Demurrers, and Trials by Verdict. Speaker Onslow’s Opinion
of Lively Judges, Burnet, Vol. V. p.432-) A few traits may
here be mentioned: Lord Bacon says, “if any one sue to be
made a Judge, for my own part, I should suspect him.” «“ Let
not a Judge meet a cause half way, nor give occasion to the
party to say, his counsel or proofs were nof\ heard.” Judge
Hutton is advised to be “a light to jurors to open their eyes,
but not a guide to lead them by the noses; that he should not

affect

aie

200

affect pregnancy and expedition, by an impatient and catching
hearing of the Counsellors at the bar.” So, in the Essay on Judi-
cature, Lord Bacon says, “patience and gravity of hearing is an
essential part of Justice, and an overspeaking Judge is no well-
tuned cymbal: it is no grace to a Judge first to find that which
he might have heard in due time from the bar; or to shew
quickness of conceit in cutting off evidence or counsel too short,
or to prevent information by questions, although pertinent.
Judges ought to be more learned than witty, more reverend
than plausible, more advised than confident. Above all things,
integrity is their portion and proper virtue.” In a

to the Judges, previous to the circuits, Lord Bacon declares that
‘a popular Judge is a deformed thing, and plaudites are fitter for
players than for magistrates.” In the letter in the Cabala, it is
said that “an ignorant man cannot, a coward dare not, be a good
Judge.” An examination of the references which have been
noticed, will not fail to convince the reader of the very dif-
ferent, perhaps the contrasted talents, which distinguish 'a
favorite advocate, and a great Judge. Churchill has drawn a
picture no less just than spirited, of that odious character, an
advocate on the Bench.

‘¢ Who may enlarge, retrench,
Create and uncreate, and on the Bench

With winks, smiles, nods, and such like paltry arts
May work and worm into a Jury’s hearts:

Or baffled there, may, turbulent of soul,

Cramp their high office and their rights controul.
Who may, though Judge, turn advocate at large,
And deal replies out by the way of charge ;
Making interpretation all the way

In spite of facts his wicked will obey.

And leaving law without the least defence,

May damn his conscience to approve his sense.”

The demeanor of a Judge off the Bench, and in the circles
of private life, is subject to the same observations which Bolin-
broke has made upon a patriot King, when not in the immediate
exercise of his august functions. This part of the Judicial
character has been touched upon, with great felicity, by that
distinguished Judge Sir H. Grimston, when, with a view to
pass a high panegyric upon his deceased friend and er.
Croke, he applies to him a passage from Tacitus, in which that
historian describes the manners of Agricola, ‘“‘ Tempora curarum
remissionumque divisa; ubi conventus ac judicia poscerent,
gravis, intentus, severus, et seepius misericors: ubi officio satis-
factum, nulla ultra potestatis persona ; tristitiam et arrogantiam
exuerat ; nec illi, quod est rarissimum, aut facilitas auctoritatem,
aut severitas amorem diminuit.”

201

CHAP. LIT.

Prince. Tuere remains but one thing, my
Chancellor, to be cleared up, which makes me
hesitate, and gives me disgust; if you can satisfy
my doubts in this particular, I will cease to im-
portune you with any more queries. It 2s objected,
that the Laws of England admit of great delays
in the course of their proceedings, beyond what
the laws of any other country allow of: this is
not only an obstruction to Justice but often an in-
supportable expence to the parties who are at law;
especially in such actions where the Demandant is
not entitled to his damages.

202

CHAP. LIII.

Chancellor. In personal actions, which do not
arise within the cities and trading towns (where
they proceed according to usages and liberties of
their own) the proceedings are in the ordinary way.
Though they admit of great delays, yet they are
not so excessive. Indeed in cities and towns, espe-
cially when the necessity of the gase so requires,
the process is speedy, as it is likewise in other parts
of the world. But neither yet are the proceedings
hurried on too fast (as it sometimes happens in other
countries) by means whereof one or other of the
parties is a sufferer. In real actions, almost every.
where, the process goes on slow and tedious; but
in England it is more expeditious. There are in
France, in the Supreme Court of Parliament, some
causes, which have been depending upwards of
thirty years. I myself know a case of appeal pro-
secuted in the said Court, which has been depend-
ing now these ten years, and it is likely will be
so for ten years more before it can be decided.
While lately at Paris, my host shewed me his
process in writing, which had been before the
Court of Parliament for eight years, for four French
Sols rent, which, of our money, makes but eght
pence, and he had no prospect of obtaining judg-
ment in less than eight years more. I have known
other cases of the same nature: and for what ap-
pears to me, the Laws of England do not admit
of so great delays as the Laws of France. But
it is really necessary there should be delays in

203

legal proceedings, provided they be not too dilatory
and tedious. By these means the parties, in par-
ticular the party prosecuted, is better provided with
his proper defence, and advice of counsel, which
otherwise neither of them could be, either to pro-
secute or defend. “‘ Judgment is never so safe
when the process is hurried on.’’ I remember once
at an assizes and gaol-delivery at Salisbury, that
I saw a woman indicted for the death of her hus-
band, within the year: she was found guilty,
and burnt for the same: in this case the Judge
of assize, after the whole proceedings before him
were over, might have respited the execution of
the woman, even after the expiration of the year.
At a subsequent assizes I saw a servant of the
man who was so killed, tried and convicted before
the same Judge for the same murder: who made
an ample public confession that he was the only
person who was guilty of the said fact, and that
his mistress, who had been executed, was entirely
innocent of it: wherefore he was drawn and hanged,
and at the time and place of his execution he
lamented the case of his poor mistress, upon ac-
count of her innocence, and her being in no wise
privy to her husband’s death. The fact being
thus, how may we suppose the Judge to be affected
with a sense of conscience and remorse for being
so hasty in awarding judgment of execution, when
it was in his power to have stayed, for some time,
further process against her: he often owned to me,
with concern, that he should never be able to
satisfy it to his conscience for such his precipitate
behaviour. Deliberation often brings judgment to
maturity, which seldom. or never happens where
the proceedings are too much hurried on. Where-
fore the Laws of England admit of Essoins, a sort
of practice not known in the laws of other coun-
tries. Are not the Vouchings to Warranty of some
use? The same may be said of the Aids of those

204

to whom the reversion of lands belongs, who bring
the title in question, and who have in their cus-
tody the evidences to make out the title of the
lands. The same may be said of Coparcenors,
who are to restore in proportion, if the estate
allotted to. one of them should be evicted: and
yet these are all delays, as I have formerly in-
formed you: even delays of this kind the laws
of other countries do not allow: neither do the
Laws of England favour such delays and impar-
lances as are frivolous and vexatious. And if, at
any time, delays happen in pleading, which are
found to be mischievous and inconvenient, they
may be abolished, or reformed, in every parlia-
ment; nay, and all other laws used in England,
where they do not answer the intention, or labour
under any defect, may be corrected and amended
in Parliament. So that all the Laws of England,
you will conclude from what has been said, must
needs be very good, either in fact or possibility.
They are either such already, or are easily capable
of being made such. And to this the kings of
England are obliged, in virtue of a solemn. oath
taken at their coronation, as often as the neces-
sity or equity of the case shall so require’.

* This part of Fortescue’s Treatise is quoted in the Preface
to the eighth Report, in which Coke expresses the resolution of
the Court to discountenance all unnecessary delays, which he
calls the device of the devil. In the second Institute he repeats
in several places a rule for the construction of Statutes which
accelerate the progress of causes, that they are to be construed
liberally for effectuating that purpose. In Lord Chancellor
Bromley’s speech to C. J. Anderson, which is given in Moore’s
Reports, the: oppressions arising from delay in judicial proceed-
ings are enumerated: and the Chancellor concludes. by declaring
that he who prosecutes his right would rather have a speedy
judgment against him, than a tardy one with him. A Court was
established in the Reign of Edward III. for redressing delays in
judgments ; a particular account of which Court is given in the
fourth. Institute. In the second Institute is found a multitude

of statutary provisions in restraint of the abuses arising from the
doctrine

205 .

doctrine of essoins, vouchers, aids, and demur of parol, (See
particularly 2 Inst. 411. and Jehu Webb’s Case, 8 Rep. the Rea-
sons for Calling the Assize “ Festinum Remedium.” On fourching
by essoin, 2 Inst. 250. Concerning the Justices of Trailbaston,
2 Inst. 540. Spelman’s Gloss. v. Trailbaston. On the Antiquit
of Essoins, Hickes. d.e. p. 8. and Beame’s Glanville, lib. i. c. é
et seqg.—On the Essoin de malo lecti and licentia surgendi, Regist.
Orig. fol. 8 and 9. Selden, Hengham, Magna, n 37, Case of the
Abbot of Crowland, who lost his seisin, because after being essoined
de malo lecti, when the four Knights were coming to inspect him,
he rose to go to the Court, and the Knights did not find him in bed.)
There were two species of delay common in Courts of Justice,
which deserve attention as they respect the prerogative of the
Crown ; the first of these is the Writ “de Rege Inconsulto”
which Coke informs us was often used for the purpose of delay,
(2 Inst. 269, 261. Fitz. N. B. 153. Hardr. 427. Tremaine’s
P. C. 684. Bacon’s Letters. Lord Ellesmere’s Speech on the
Appointment of Montague who succeeded Sir E. Coke. Moore's
Rep. 828.). The other is the Writ of Protection which was
a greater cause of delay than even the Essoin. Queen Eli-
zabeth discountenanced the granting of protections in a manner
highly honorable to her character ; they have been the subject
of judicial decision since the Revolution, in the case of Lord
Cutts. (Reeves’s Henry VI. Co. Litt. 138. and Hargr. note ibid.
2 Inst. 56. 3 Lev. 332. Barr. on 12 Edw. IT. §.2.) Spelman has
traced with great learning the origin of our law terms and of
the rules by which the intervals between the steps in the
proceedings of a cause are regulated: many of which had their
foundation in the superstitions of the Romish Church. (See also
Herne’s Cur. Disc. several Tracts upon Terms. Wynne’s Eunomus.
2 Inst. 64.) With respect to delays in the prosecution of
capital offences, the wise and humane caution of Fortescue is
repeated by Sir E. Coke and Sir M. Hale, who relate several
melancholy instances arising within their own experience, which
like the one cited in the text, exhibit the baneful effects of
a precipitate execution of justice in criminal matters: On such
occasions the Judge should be actuated by the sentiment in the
passage of antiquity according to the sense in which it was fre-
quently adopted by Lord Somers, “ De morte hominis nulla est
cunctatio longa.” Lord Bacon had, to use his own expression,
“somewhat of the cunctative,’ and the Motto which Hale put
on the head of his Staff was “ festina lente.” (See further con-
cerning Delays in Lan, Pref. to Sir J. Davis's Reports. Don-
man’s Case, 9 Rep. Harl. Misc. Vol. VIII. p. 414.)

206

CHAP. LIV.

Prince. I am perfectly convinced from the
whole tenor of your discourse, that the Laws of
England are not only good, but the best of laws
for the particular Constitution of England. And
if at any time some of them want amendment, it
may be easily done by application to, and in the
way of Parliament: so that the kingdom either
really is, or is easily capable of being governed
by the best of laws: and I am of opinion that
the points you have advanced in this discourse,
and the just encomium you have given our laws,
may be of some use to those who shall be here-
after kings of England: since no king can govern
with pleasure by such laws as he is not pleased
with, or does not rightly apprehend. “The un-
fitness of a tool disgusts the mechanic: and, the
bluntness of the lance or spear makes a dastardly
soldier.”” But as a soldier is animated to the battle
when his arms are good, and himself expert in
using them, according to Vegetzus, who says, ‘that
knowledge and experience in war breed and beget
courage : and no one is afraid to do what he knows
he can do well.” So a king is animated and é€n-
couraged to do justice, when the laws, by which
it is administered, are reasonable and just, and he
has a sufficient kiiowledge of and experience in
them. A general knowledge is sufficient for him,
leaving it to his Judges to have a more exact and
a more profound skill in them. So Vincentius Belu-

207

acensis, in his book of Moral Institution of Princes,
says, “that every Prince ought to have a general
knowledge of the Holy Scriptures,’ which say,
“that vain are all they in whom there is not the
knowledge of Gop the Most High:” and it is
written in the Proverbs, “let knowledge be in the
lips of the king, and his mouth shall not err in
judgment.’” Yet a Prince is not obliged to so
critical an understanding of the Scriptures; such
as may become a Professor in Divinity ; a general
insight and acquaintance with them, as with the
laws, is all that is necessary and required of him.
Such had Charlemaine; such had Lewis his son;
such had Robert, sometime king of France, and who
was author of this conclusion (‘‘ Sancti sprritits
adsit Nobis Gratia’’) and many others, as the said
Vincentius, in the 15th chapter of the same book,
evidently shews. Wherefore the doctors of the
laws do say, that “an emperor carries all his laws
in the cabinet of his own breast.” Not that he
really and actually knows all the laws, but as he
apprehends the principles of them, their method
and nature, he may properly enough be said to
understand them all. Moreover, he has it in his
power to alter or abrogate them: so that all the
laws are in him potentially, as Eve was in Adam
before she was formed. But since, my good Chan-
cellor, you have now performed what you under-
took at first, and have fully persuaded me to apply
myself to the study of the laws of my country,
I will no longer detain you on {this subject. But,
I now earnestly desire, that you will proceed, as
you have formerly begun with it, to instruct me
in the principles, method and nature of the Law
of England: which law, I am resolved, shall be
ever dear to me, preferably to all other laws in
the world, which it as far surpasses, as the morn-
ing star exceeds the other stars in glory and
brightness. Since the intention is answered where-

208

with you were moved to this conference: time and
reason require that we put an end to it. Ren-
dering all due thanks and praise to Him who
enabled us to begin, to carry on. and finish it ;
even Alpha and Omega, the beginning and the
end, the first and the last; and “let every thing
that hath breath praise the Lorp.”’ Amen.

INTRODUCTIO.

Sxvrente dudum in regno Angliw nefandissima Rabie illa
qua piissimus ibidem Rex Henricus Sextus, cum Margareta
Regina consorte sua, Filia Regis Jerusalem et Siciliz, ac eorum
Unigenito Edwardo Principe Walliz, inde propulsi sunt, sub qua
et demum Rex ipse Henricus a subditis suis deprehensus Carceris
diutinum passus est Horrorem, dum Regina ipsa cum sobole, Patria
sic extorris, in Ducatu Berren’ in predicti Regis Jerusalem
Dominio morabantur. Princeps ille, mox ut factus est adultus,
militari totum se contulit Discipline, et sepe ferocibus et quasi
indomitis insedens Caballis, eos Calcaribus urgens, quandoque
Lancea, quandoque Mucrone, aliis quoque Instrumentis bellicis,
Sodales suos, Juvenes sibi servientes, Bellantium more, invadere,
ferireque, juata Martis Gymnasii Rudimenta, delectabatur. Quod
cernens Miles quidam grandevus, preedicti Regis Anglie Can-
cellarius, qui etiam ibidem sub hac Clade exulabat, Principem
sic affatur.

CAP. I.

Gaupeo vero, Serenissime Princeps, super nobilissima Indole
Tua, videns quanta Aviditate militares Tu amplecteris Actus;
convenit namque Tibi taliter delectari, nedum quia Miles es,
sed amplius quia Rex futurus es. Regis nempe officium pugnare
est Bella Populi sui, et eos rectissime judicare, ut primo Regum
Capitul. VIII. clarissime Tu doceris. Quare ut Armorum uti-
nam et Legum Studiis simili Zelo te deditum contemplarer, cum
ut Armis Bella, ita Legibus Judicia peregantur. Quod Justi-
nianus Augustus, equissima librans Mente, in Initio Prohemii
Libri sui Institutionum, ait “Imperatoriam Majestatem non
solum Armis decoratam, sed et Legibus oportet esse armatam,’
ut utrumque Tempus Bellorum et Pacis recte possit gubernare.
Tamen ut ad Legum Studia fervide tu anheles, maximus Legis-

Oo

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lator ille Moyses, olim Synagoge Dux, multo fortius Cesare Te
invitat, dum Regibus Israel Divina Autoritate ipse preecipiat
eorum Leges legere omnibus Diebus Vite sue, sic dicens:
« Postquam sederit Rex in Solio Regni sui, describet sibt Deute-
ronomit Leges in Volumine, accipiens Exemplar a Sacerdotibus
Levitice Tribus et habebit secum, legetque illud omnibus Diebus
vite sue, ut discat timere Dominum Deum suum, et custodire verba
et Ceremonias ejus, que in Lege Scripta sunt,’ Deuteron. capit.
decimo septimo. Quod exponens Helynandus dicit, “ Princeps
ergo non debet Juris ignarus esse, nec preetextu Militia Legem
permittitur ignorare.” Et post pauca, a Sacerdotibus Levitice
Tribus assumere jubetur Exemplar Legis, id est a viris Catholicis
et literatis; Hee ille: Liber quippe Deut. est Liber Legum,
quibus Reges Israel subditum sibi Populum regere tenebantur.
Hune Librum legere jubet Moses Reges, ut discant timere
Deum, et custodire Mandata ejus, que Lege scripta sunt. Ecce
timere Deum Effectus est Legis, quem non consequi valet Homo,
nisi prius sciat Voluntatem Dei, que in Lege scripta est. Nam
Principium omnis Famulatus, est scire voluntatem Domini cui
servitur. Legis tamen lator Moses primo in hoc Edicto Effectum
Legis, videlicet, Timorem Dei commemorat: deinde ad Custo-
diam Cause ejus, videlicet, Mandatorum Dei ipse invitat. Nam
Effectus prior est quam Causa in animo Exhortantis. Sed quis
est Timor iste, quem promittunt Leges Observatoribus suis ?
vere non est Timor ille, de quo scribitur: Quod perfecta
Charitas foras mittit Timorem. Timor tamen ille, licet servilis,
seepe ad legendum Leges Reges concitat, sed non est ipse Proles
Legis. Timor vero, de quo hic loquitur Moses, quem et pariunt
Leges, est ille de quo dicit Propheta: “ Timor Domini sanctus
permanet in Seculum seculi ;” Hic filialis est et non novit poenam,
ut ille qui per Charitatem expellitur. Nam iste a Legibus profi-
ciscitur, que docent facere voluntatem Dei, quo ipse Poenam non
meretur. Sed Gloria Domini est super metuentes eum, quos et
ipse glorificat. Timor autem iste timor ille est, de quo Job,
postquam multifarie Sapientiam investigat, sic ait: ‘“‘ Ecce Timor
Domini, ipse est Sapientia, et recedere a malo Intelligentia.”
Job, cap. 28. Recedere a Malo, quod Intelligentia Timoris Dei
est, Leges docent, quo et Timorem hunc ipse parturiunt.

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CAP. IL.

H.xc ut audivit Princeps erecto in Senem Vultu, sic loquutus
est. Scio, Cancellarie, quod Liber Deut. quem Tu commemoras,
sacre Scripture Volumen est ; Leges quoque et Ceremoniz in eo
conscripte etiam sacra sunt, a Domino edite, et per Mosen pro-
mulgate: quare eas legere sancte Contemplationis Dulcedo est.
Sed Lex, ad cujus Scientiam me invitas, humana est, ab Homini-
bus edita, et tractans terrena, quo, licet Moses ad Deuter. Lec-
turam Reges Israel astrinxerit, eum per hoc Reges alios ad con-
similiter faciendum in suis Legibus concitasse,; omnem effugit
Rationem, cum utriusque Lecture non sit eadem causa.

CAP. IIL.

Ar Cancellarius, scio (inquit) per hee que jam dicis, Prin-
ceps clarissime, quanta advertentia Exhortationis mez Tu pon-
deras Qualitatem, quo me non infime concitas super Inceptis
nedum, clarius, sed et profundius quodammodo Tecum discep-
tare: Scire igitur Te volo, quod non solum Deut. Leges, sed
et omnes Leges humane sacre sunt, quo Lex sub his verbis
definitur: Lex est Sanctio sancta, jubens honesta, et prohibens
contraria: Sanctum etenim esse oportet, quod esse sanctum
definitum est. Jus etiam describi perhibetur, quod illud Ars est
boni et zqui, cujus merito quis nos Sacerdotes appellat. Sacerdos
enim, quasi sacra dans, vel sacra docens, per Etymologium
dicitur, quia ut dicunt, Jure Leges sacre sunt, quo eas mi-
nistrantes et docentes, Sacerdotes appellantur. Adeo etiam sunt
omnes Leges édite} que ab Homine promulgantur. Nam cum
dicat Apostolus, quod omnis Potestas a Domino Deo est, Leges
ab Homine condit#, qui ad Hoc a Domino recipit Potestatem,
etiam a Deo constituuntur, dicente Auctore Causarum: “ Quic-
quid facit Causa secunda, facit et Causa prima, altiort et nobi-
liori: modo.” Quaré Josophat, Rex Juda, ait Judicibus suis,
« Judicia, que vos profertis, Judicia Dei sunt,” secundo Paralipo.
XIX. Capitul. Ex quibus erudiris, quod Leges, licet humanas,
addiscere, est addiscere Leges sacras et Editiones Dei, quo earum
Stadium non vacat a Duleedine Consolationis Sancta. Nec

0 2

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tamen, ut tu conjicis, Dulcedo hujusmodi causa fuit, cur Moses
Reges Israel Deut. legere preeceperat. Nam Causa hec non plus
Reges quam Plebeios ad ejus Lecturam provocat, nec plus Deut.
Librum, quam alios Pentateuchi Libros legere pulsat Causa ista,
cum non minus Libri illi, quam Deut. sacris abundant Carismati-
bus, in quibus meditari per sanctum est. Quare non aliam fuisse
Causam mandati hujus, quam quia in Deut. plus quam in aliis
Libris veteris Testamenti, Leges inseruntur, quibus Rex Israel
Populum regere obnoxius est, ejusdem Mandati Circumstantie
manifeste nos informant. Quo, et Te, Princeps, eadem Causa
non minus quam Reges Israel exhortatur, ut Legum, quibus
Populum in futurum reges, Tu sis solers Indagator. Nam, quod
Regi Israel dictum est, omni Regi Populi videntis Deum, typice
dictum fuisse Intelligendum est. An tunc non convenienter
utiliterque proposui Tibi Mandatum Regibus Israel latum, de
eorum Lege addiscenda? Dum nedum ejus Exemplum, sed
et ejus Auctoritas figuralis, Te erudivit et obligavit ad con-
similiter faciendum de Legibus Regni, quod annuente Domino
hereditaturus es.

CAP. IV.

Non solum ut Deum timeas, quo et sapiens eris, Princeps
colendissime, vocant te Leges, cum Propheta dicente ‘“ Venite
Filit audite me, Timorem Domini docebo vos: sed etiam ut Feli-
citatem, Beatitudinemque (prout in hac Vita nancisci_poteris).
adipiscaris, ipse Leges ad earum Disciplinatum Te invitant.
Philosophi namque omnes, qui de Felicitate tam varie dispu-
tabant, in hoc uno convenerunt, viz. quod Felicitas sive Beatitudo
Finis est omnis humani Appetitus, quare et ipsam summum
Bonam appellant, Peripatetici tamen constituebant eam in Vir-
tute: Stoict in honesto: et Epicurt in Voluptate. Sed quia
Stoict Honestum definiebant esse quod bene fit et laudabiliter
ex Virtute, et Epicuri afferebant nihil esse voluptuosum sine
Virtute, omnes secte ille, ut dicit Leonardus Aretienus Ysago-
gico moralis Disciplinz, id hoc concordaverunt, quod sola Virtus
est, que Felicitatem operatur. Quo et Philosophus (in 7 Polit.
Felicitatem definiens) dicit, quod ipsa est perfectus usus Virtu-
tum. His jam presuppositis, considerare Te volo etiam ea que

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sequentur. Leges humane-non aliud sunt quam Regule, quibus
perfecte Justitia edocetur. Justitia vero, quam Leges revelant,
non est illa, que commutativa vel distributativa vocatur, ‘seu
alia quevis particularis virtus, sed est Virtus perfecta, que
Justitiz legalis Nomine designatur. Quam Leonardus preedictus
ideo dicit esse perfectam, quia omne Vitium ipsa eliminat, et
omnem virtutem ipsa docet: quo et omnis Virtus ipsa merito
nuncupatur. De qua Homerus dicit, similiter et Philosophus
quinto Ethicorum, Quod ipsa est preclarissima Virtutum, et nec
Lucifer, nec Hesperus, ut illa, est admirabilis. Justitia vero
. hee subjectum est omnis regalis Cura, quo sine illa Rex juste
non judicat, nec recte pugnare potest. Illa vero adepta perfec-
teque servata, equissime peragitur omne Officium Regis. Unde
cum perfectus usus Virtutum sit Felicitas, et Justitia humana,
que non nisi per Legem perfecte nanciscitur aut docetur, nedum
sit Virtutum Effectus, sed et omnis Virtus: sequitur, quod Jus-
titia fruens felix per Legem est, quo et per eam ipse fit beatus,
cum idem sit Beatitudo et Felicitas in hac fugaci vita, cujus et
per Justitiam ipse summum habet Bonum. Tamen non nisi per
Gratiam Lex poterit ista operari, neque Legem aut Virtutem sine
Gratia Tu addiscere poteris, vel appetere. Cum, ut dicit Paris.
in Libro suo de Cur Deus Homo, Virtus Hominis appetitiva
interior per peccatum Originale ita vitiata est, ut sibi Vitiorum
suavia, et Virtutum aspera Opera sapiant. Quare, quod aliqui
ad Amorem, Sectationemque Virtutis se conferunt, divine Boni-
tatis Beneficium est, et non humane Virtutis. Num tunc Leges,
que, preveniente et comitante Gratia, omnia Premissa operantur,
toto Conamine addiscende sunt? Dum Felicitatem, que se-
cundum Philosophos est hic Finis et Complementum humani
Desiderii, earum Apprehensor obtinebit, quo et beatus ille erit in
hac Vita, ejus possidens summum Bonum. Vere, etsi non hec
Te moveant, qui Regnum recturus es, movebunt Te et acetabunt
ad Disciplinatum Legis Prophetz verba dicentis: “ Erudimini qui
judicatis Terram :” non enim ad Eruditionem Artis factive, aut
mechanice, hic movet Propheta: Cum non dicat, Erudimini, qui
colitis Terram, nec ad Eruditionem scientiz tantum Theorice,
quamvis opportuna fuerit Incolis Terre, quia generaliter non
dicit, Erudimini qui inhabitatis Terram, sed solum ad Discipli-
nam Legis, qua Judicia redduntur, Reges invitat Propheta in his
Verbis, cum specialiter ipse dicat, “ Erudimini qui judicatis
Terram.” Et sequitur, “Ne quando irascatur Dominus, et per-

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eatis de via justa.” Nec solum Legibus, quibus Justitiam conse-

queris, (Fili Regis) imbui Te jubet sacra Scriptura, sed et ipsam ‘
Justitiam diligere Tibi alibi precipit, cum dicat, “ Diligite

Justitiam qui judicatis Terram.” Sapientie Capitulo primo.

CAP, V.

Sep quomodo Justitiam diligere poteris, si non primo Legum
Scientiam, quibus ipsa cognoscatur, utcunque apprebenderis? —
Dicit namque Philosophus, quod Nihil amatum nisi cognitum.
Quare Fabius Orator ait, “ Quod felices essent Artes, si de illis
soli Artifices judicarent.” Ignotum vero non solum non amari,
sed et sperni solet. Quo Poeta quidam sic ait,

Omnia que nescit, dicit spernenda Colonus.

Et non Coloni solum Vox hec est, sed et Doctorum peritissi-
morum quoque Virorum. Nam si ad Philosophum Naturalem,
qui in Mathemat. nunquam studet, Metaphysicus dicat, Quod
Scientia sua considerat Res separatas ab omni Materia et motu
secundum esse et secundum Rationem: vel Mathematicus dicat,
quod sua Scientia considerat Res conjunctas Materie et motui,
secundum Esse, sed separatas secundum Rationem: ambos hos,
licet Philosophos, Philosophus ille Naturalis, qui nunquam novit
Res aliquas separatas a Materia et Motu, Essentia vel Ratione,
spernet, eorumque Scientias, licet sua Scientia Nobiliores, ipse
deridebit, non alia ductus Causa, nisi quia eorum Scientias ipse
penitus ignorat. Sic et Tu, Princeps, Legis Anglie peritum
miraberis, si dicat, quod Frater Fratri sibi nequaquam uterino
non succedet in Hereditate paterna, sed potius Hereditas illa
Sorori integri Sanguinis sui descendet, aut Capitali Domino Feodi
accidet ut Esceta sua: Cum Causam Legis hujus Tu ignores,
in Lege tamen Anglie doctum hujus Casus Difficultas nullatenus
perturbat. Quare et vulgariter dicitur: Quod Ars non habet
Inimicum nisi ignorantem.

Sed absit a te, Fili Regis, ut inimiceris Legibus Regni, quo
Tu successurus es, vel ut eas spernas, quum Justitiam diligere
predicta Sapientize Lectio Te erudiat. Iterum igitur atque
iterum, Princeps inclytissime, Te adjuro, ut Leges Regni Patris

215

Tui, cui successurus es, addiscas ; nedum ut Inconvenientias has
Tu evites: Sed quia Mens humana, que naturaliter Bonum
appetit, et nihil potest appetere, nisi sub Ratione Boni, mox ut per
Doctrinam Bonum apprehenderit, gaudet et illud amat, ac quanto
deinceps illud plus recordatur, tanto amplius delectatur in eodem,
quo doceris, quod si Leges preedictas, quas jam ignoras, intel-
lexeris per Doctrinam, cum optima ille sint, amabis eas.
Et quanto plus easdem mente pertractaveris, delectabilius Tu
frueris.

Nam omne, quod amatur, usu trahit Amatorem suum in
Naturam ejus. Unde, ut dicit Philosophus, usus altera sit Na-
tura. Sic Ramuneulus Pyri Stipiti Pomi insertus, postquam
coaluerit, ita Pomum trahit in Naturam Pyri, ut ambe deinceps
merito Pyrus appellentur, Fructusque producant Pyri. Sic et
usitata Virtus habitum generat, ut utens ea deinde a Virtute
illa denominetur, quo Modestia preeditus, usu. Modestus nomi-
natur, Continentia continens, et Sapientia sapiens. Quare et Tu,
Princeps, postquam Justitia delectabiliter functus fueris, habi-
tumque Legis indutus fueris, merito denominaberis Justus, cujus
gratia Tibi dicetur, Delexisti Justitiam, quo et odisti Iniquitatem,
propterea unxit Te Dominus Deus Tuus Oleo Letitie pre con-
sortibus Tuis Regibus Terre.

CAP: V1.

Nowne tunc, Princeps serenissime, hec Te satis concitant
ad Legis Rudimenta? cum per ea Justitiam induere valeas: .
quo et appellaberis Justus, Ignorantia quoque Legis evitare
poteris Ignominiam: ac per Legem Felicitate fruens, beatus
esse poteris in hac Vita, et demum filiali Timore indutus, qui
Dei Sapientia est, Charitatem, que Amor in Deum est, imper-
turbatus consequeris, qua Deo adherens per Apostoli Sententiam
« Fies unus Spiritus cum eo.”

Sed quia ista, sine Gratia, Lex operari nequit, Tibi illam
super omnia implorare necesse est, Legis quoque Divine et
Sanctarum scripturarum indagare Scientiam.

Cum dicat Scriptura sacra, quod “ Vani sunt omnes, in quibus
non subest Scientia Dei.” Sapientia, cap. XIII.

His igitur, Princeps, dum Adolescens es, et Anima tua velut

216

Tabula rasa, depinge eam, ne in futurum ipsa Figuris minoris
Frugi delectabilius depingatur.

Quia etiam, (ut Sapiens quidam ait,)
Quod nova Testa capit, inveterata sapit.

Quis Artifex tam Negligens profectus sue Prolis est, ut non eam,
dum pubescit, Artibus instruat, quibus postea vite Solatia nan-
ciscatur? Sic lignarius Faber secare Dolabra, Ferrarius ferire
Malleo, Filium instruit: et quem in Spiritualibus ministrare
cupit, Literis imbui facit: Sic et Principi Filium suum, qui
post eum Populum regulabit, Legibus instrui dum minor est,
convenit. Qualiter si fecerint Rectores Orbis, Mundus iste am-
pliori, quam jam est, Justitia regeretur, quibus, si Tu, ut jam
hortor, facias, Exemplum non minimum ministrabis.

¢

CAP: Vi:

Sitenre extune Cancellario, Princeps ipse sic exorsus est :
Vicisti me, Vir egregie, suavissima Oratione Tua, qua et
Animum meum Ardore non minimo Legis fecisti sitire Docu-
menta. Sed tamen duobus me hue illucque agitantibus, Ani-
mus ipse affligitur: ut tanquam in turbido Mari Cymba nesciat
quorsum dirigere Proras. Unum est, dum recolit quot An-
norum Curriculis Leges addiscentes earum studio se con-
ferunt, antequam sufficientem earundem Peritiam nanciscantur,
quo timet Animus ipse ne consimiliter ego preteream Annos
Juventutis mez. Alterum est, an Anglie Legum vel Civilium,
que per Orbem percelebres sunt, Studio operam dabo. Nam
non nisi optimis Legibus populum regere licet, etiam ut dicit
Philosophus, “ Natura deprecatur Optima.” Quare libenter super
his, quod tu consulis, auscultaremus. Cui Cancellarius. Non
sunt hee, Fili Regis, tantis celata Mysteriis ut Deliberatione
egeant ingenti, quare quid in his mihi visum est prodere non
> differemus. ;

CAP. VIII.

Pumosoruus in primo Physicorum dicit, quod “ Tune
unumquodque scire arbitramur, cum Causas et Principia ejus cog-
noscamus usque ad Elementa.” Super quem Textum Commen-

21%

tator dicit, quod Aristoteles per Principia intellexit Causas
efficientes, per Causas intellexit Causas finales, et per Elementa
Materiam et Formam. In Legibus vero non sunt Materia et
Forma, ut in Physicis et Compositis. Sed tamen sunt in eis
Elementa quedam, unde ipse profluunt, ut ex Materia et
Forma, que sunt Consuetudines, Statuta, et Jus Nature, ex
quibus sunt omnia Jura Regni, ut ex Materia et Forma sunt
queeque Naturalia: et ut ex Literis, que etiam Elementa appel-
lantur, sunt omnia que leguntur. Principia autem, que Com-
mentator dicit esse Causas efficientes, sunt quedam Universalia,
que in Legibus Anglie docti, similiter et Mathematici, Mazi-
mas: vocant: Rhetorici Paradoxas: et Civilista Regulas Juris
denominant. Ipsa revera non Argumentorum vi, aut Demon-
strationibus Logicis dignoscuntur, sed ut Secundo Posteriorum
docetur, Inductione, via sensus et memorize adipiscuntur. Quare
et primo Physicorum Philosophus dicit, “Quod Principia non
Jfiunt ex aliis, neque ex alterutris, sed ex illis alia fiunt.” Quo
primo Topicorum scribitur, quod “ unumquodque Principiorum
est sibi tpse Fides. Unde, cum negantibus ea (dicit Philosophus)
non est disputandum” quia ut scribitur VI. Ethicorum, “ Ad
Principia non est Ratio.” Igitur Principiis imbuendi sunt, qui-
qui gliscunt aliquas intelligere Facultates. Ex eis etenim reve-
lantur Causz finales, ad quas, Rationis Ductu, per Principiorum
Agnitionem pervenitur ; unde, his tribus, viz. Principiis, Causis,
et Elementis ignoratis, Scientia, de qua ipsa sunt, penitus ignoratur.
Et his cognitis, etiam Scientiam illam cognitam esse, non deter-
minate, sed in confuso et universaliter, arbitratur.

Sic Legem Divinam nos nosse indicamus, dum Fidem,
Charitatem, et Spem, Sacramenta quoque Ecclesie ac Dei
Mandati, nos intelligere sentiamus ; cetera Theologie Mysteria
Ecclesize Presidentibus relinquentes. Quare Dominus Disci-
pulis suis ait, “ Vobis datum est nosse Mysterium Regni Dei,
ceteris autem in Parabolis, ut videntes non videant, &c.” Et
Apostolus dixit, “Non plus sapiere quam oportet sapere.” Et
alibi, ‘‘ Non alta sapientes.” Sic et Tibi, Princeps, necesse non
erit Mysteria Legis Anglize longo Disciplinatu rimare, sufficiet
Tibi, ut in Grammatica Tu profecisti, etiam et in Legibus pro-
ficias. Grammatice vero perfectionem, que ex Elymologia,
Orthographia, Prosodia, et Syntaxi, quasi ex quatuor Fontibus
profluit, non Specie tenus induisti, et tamen Grammatica suffi-
cienter eruditus es, ita ut merito Grammaticus denomineris.

218

Consimiliter quoque denominari Legista mereberis, si Legum
Principia et Causas, usque ad Elementa, Discipuli More in-
dagaveris. Non enim expediet Tibi,, propria Sensus Indagine
Legis Sacramenta rimare, sed relinquantur illa Judicibus Tuis
et Advocatis, qui in Regno Anglie Servientes ad Legem appel-
lantur,. similiter et aliis peritis, guos Apprenticios. vulgus deno-
minat: melius enim. per alios, quam per. Teipsum Judicia
reddes, quo, proprio Ore, nullus Regum Anghe Judicium proferre
usus est.; et tamen sua sunt omnia Judicia Regni; licet per
alios ipsa reddantur, sicut et Judicum omnium Sententias Josaphat
asseruit esse Judicia Dei. Quare, Tu Princeps serenissime, parvo
Tempore, parva Industria, sufficienter eris in. Legibus Regni
Anglia eruditus, dummodo ad ejus Apprehensionem Tu con-
feras Animum tuum. Dicit namque Seneca in Epistola ad
Lucillum, “ Nihil est quod pertinax Opera, et diligens Cura, non
expugnat.” Nosco namque Ingenii Tui Perspicacitatem, quo
audacter pronuntio, quod in Legibus illis, licetearum Peritia,
qualis Judicibus necessaria est, vix XX. Annorum Lucubra-
tionibus acquiratur, Tu Doctrinam Principi congruam in Anno
uno ‘sufficienter nancisceris, nec interim Militarem Disciplinam,
ad. quam tam ardenter anhelas, negliges ; sed ea, Recreationis
Loco; etiam Anno illo, Tu ad Libitum perfrueris.

CAPS EX>

Secunpum vero, Princeps, quod tu formidas, consimili nec
Majori opera elidetur. Dubitas nempe, an Anglorum Legum,
vel Civilium Studia Te conferas, dum Civiles supra humanas
cunctas Leges alias, Fama per Orbem extollat gloriosa. Non te
conturbet, Fili Regis, hec Mentis Evagatio: Nam-non potest
Rex Anglize ad Libitum suum Leges mutare Regni sui, Prin-
cipatu namque nedum Regali, sed et Politico, ipse suo Populo
dominatur. Si regali tantum ipse preesset eis, Leges Regni
sui mutare ille posset, Tallagia quoque et cetera Onera eis
imponere ipsis inconsultis, quale Dominium denotant Leges
Ciyiles, cum dicant, “Quod Principi placuit, Leges habet Vigo-
rem.” Sed longe aliter potest Rex politice imperans Genti sue,
quia nec Leges ipse sine Subditorum Assensu mutare poterit,
nec Subjectum Populum renitentem onerare Impositionibus
peregrinis, quare Populus ejus libere fruetur Bonis suis, Legi-

219

bus quas cupit Regulatus, nec per Regem suum, aut quemvis
alium depilatur ; consimiliter tamen plaudit Populus, sub Rege
Regaliter tantum principante, dummodo ipse in Tyrannidem
non labatur. De quali Rege dicit Philosophus III. Politicorum,
“ Quod melius est Civitatem regi Viro optimo, quam Lege optima.”
Sed quia non semper contingit Presidentem Populo hujusmodi
esse Virum, Sanctus Thomas in Libro quem Regi Cypri scripsit,
de Regimine Principum, optare censetur, Regnum sic institui,
ut Rex non libere valeat Populum Tyrannide gubernare, quod
solum fit, dum Potestas Regia Lege Politica cohibetur: Gaude
igitur, Princeps optime, talem esse Legem Regni in quo Tu
successurus es, quia et Tibi, et Populo, ipsa Securitatem pre-
stabit non minimam et Solomen. Tali Lege, ut dicit idem
Sanctus, regulatum fuisset totum Genus humanum, si in Para-
diso Dei Mandatum non preteriisset : tali etiam Lege regebatur
Synagoga, dum sub solo Deo Rege, qui eam in Regnum pecu-
liare adoptabat ; illa militabat ; sed domum ejus Petitione, Rege
Homine sibi constituto, sub lege tantum Regali ipsa deinceps
humiliata est. Sub qua tamen dum optimi Reges sibi prefu-
erunt, ipsa plausit, et dum Discoli ei preessebant, ipsa incon-
solabiliter lugebat, ut Regum Liber hec distinctius manifestavit.
Tamen quia de Materia ista in Opusculo, quod Tui contem-
platione de Natura Legis Nature exaravi, sufficienter puto me
desceptasse, plus inde loqui jam desisto.

CAP. X.

Tune Princeps illico sic ait. Unde hoc, Cancellarie, “ Quod
Rex unus Plebem suam Regaliter tantum regere valeat, et Regi
altert Potestas hujusmodi denegatur ?” equalis Fastigii cum sint
Reges ambo, cur in Potestate sint ipsi dispares nequeo non
admirari.

CADP. At.

Cance.tarivs. Non minoris esse Potestatis Regem Politice
imperantem, quam qui ut vult Regaliter regit Populum suum,

220
°
in supradicto Opusculo sufficienter est ostensum ; diverse tameft
Authoritatis eos in Subditos suos ibidem ut jam nullatenus
denegavi, cujus Diversitatis Causam, ut potero, Tibi pandam.

CAP. XII.

Homines quondam Potentia prapollentes, avidi Dignitatis
et Gloria, vicinas sepe Gentes sibi Viribus subjugarunt, ac
ipsis servire, obtemperare quoque Jussionibus suis compulerunt,
quas Jussiones extune Leges Hominibus illis esse ipsi sancierunt.
Quarum perpetione diutina, subjectus sic Populus, dum per
subjicientes a cztorum Injuriis defendebatur, in Subjicientium
‘Dominium consenserunt: Opportunius esse arbitrantes, se unius
subdi Imperio, quo erga alios defenderentur, quam omnium
eos infestare volentium Oppressionibus exponi. Sic que Regna
quedam inchoata sunt, et subjicientes illi, dum Subjectum
Populum sic rexerunt, a regendo sibi Nomen Regis usurparunt,
‘eorum quoque Dominatus tantum Regalis dictus est. Sic Nem-
‘broth primus sibi Regnum comparavit, tamen non Rex ipse,
sed “ Robustus Venator coram Domino” Sacris Literis appellatus
est: quia ut Venator Feras Libertate fruentes, ipse Homines
sibi compescuit ‘obedire. Sic Belus Assyrias, et Ninus quam
Magnam Asi@ Partem Ditioni sue subegerunt. Sic et Romani
Orbis Imperium usurparunt, qualiter fere in Omnibus Gentibus:
Regna inchoata sunt. Quare, dum Filii Israel Regem postu-
labant, sicut tunc habuerunt omnes Gentes, Dominus inde
offensus Legem Regalem eis per Prophetam explanari mandavit.
Que non aliud fuit, quam Placitum Regis eis preessentis, ut
in primo Regum Libro plenius edoceretur. Habes nunc (ni
fallor) Princeps clarissime, Formam Exordii Regnorum Regaliter
possessorum. Quare, quomodo Regnum Politice regulatum pri-
mitus erupit, etiam jam propalare conabor, ut cognitis amborum
Regnorum Initiis, Causam Diversitatis, quam Tu queris, inde
elicere Tibi facillimum sit.

CAP. XIIL.

Sanctus Augustinus, in Libro XIX. de Civitate Dei, Cap.’
XXIII. dicit “Quod Populus est Catus Hominum, Juris con-

221

sensu et Utilitatis Communione Sociatus.” Nec tamen Populus
hujusmodi dum acephalus, sine Capite, esse Corpus vocari mere-
tur. Quia ut in Naturalibus, Capite detruncato, residuum non
Corpus, sed Truncum appellamus ; sic et in Politicis, sine Capite
Communitas nullatenus corporatur. Quo, primo Polit. dicit Phi-
losophus “Quod quandocunque ex pluribus constituitur unum inter
ila, unum erit Regens, et alia erunt recta.” Quare Populum, se
in Regnum aliunde Corpus Politicum erigere volentem, semper
oportet unum preficere totius Corporis illius regitivum, quem
Regem nominare solitum est. Hoc Ordine, sicut ex Embrione
Corpus surgit Physicum, uno Capite regulatum, sic ex Populo
erumpit Regnum, quod Corpus extat mysticum, uno Homine ut
Capite gubernatum. Et sicut in Naturali Corpore, ut dicit
Philosophus, Cor est primum vivens, habens in se Sanguinem,
quem emittit in omnia ejus Membra, unde illa vegetantur et
vivunt ; sic in Corpore Politico, Intentio Populi primum vivi-
dum est, habens in se Sanguinem, viz. Provisionem Politicam
Utilitati Populi illius, quam in Caput et in omnia Membra
ejusdem Corporis ipsa transmittit, quo Corpus illud alitur et
vegetatur. Lex vero, sub qua Coetus Hominum Populus effi-
citur, Nervorum Corporis Physici tenet Rationem: Quia sicut
per Nervos Campago Corporis solidatur, sic per Legem, que
a Ligando dicitur, Corpus hujusmodi Mysticum ligatur et ser-
vatur in unum, et ejusdem Corporis. Membra ac Ossa, que
Veritatis, qua Communitas illa sustentatur, Soliditatem denotant,
per Legem, ut Corpus Naturale per nervos propria retinent
Jura. Et ut non potest Caput Corporis Physici Nervos suos
commutare, neque Membris suis proprias Vires, et propria San-
guinis Alimenta denegare, nec Rex, qui Caput Corporis Politici
est, mutare potest Leges Corporis illius, nec ejusdem Populi
substantias proprias subtrahere, reclamantibus eis aut invitis.
Habes ex hoc jam, Princeps, Instituti omnis Politici Regni
Formam, ex qua metiri poteris Potestatem, quam Rex ejus in
Leges ipsius aut Subditos valeat exercere: Ad Tutelam namque
Legis Subditorum, ac eorum Corporum et Bonorum Rex hujus-
modi erectus est, et hance Potestatem a Populo effluxam ipse
habet, quo ei non licet Potestate alia suo Populo dominari:
quare ut Postulationi Tue, qua certiorari cupis, unde hoc
provenit quod Potestates Regum tam diversimode variantur,
succinctius satisfaciam. Firme conjector, quod diversitates In-
stitutionum Dignitatum illarum, quas propalavi, predictam

222

Discrepantiam solummodo operantur, prout Rationis Discursu
Tu ex Premissis poteris exhaurire. Sic namque Regnum An-
glie, quod ex Bruti Comitiva Trojanorum, quam ex’ Italie. et
Grecorum Finibus perduxit, in Dominium Politicum et Regale
prorupit: Sic et Scotia, que ei quondam ut Ducatus obedivit,
in regnum crevit Politicum et Regale. Alia quoque plurima
Regna nedum Regaliter, sed et Politice regulari, tali: Origine
Jus sortita sunt. Unde Diodorus Siculus in Secundo Libro
Historiarum priscarum de Egyptiis sic scribit,; suam primum
Egyptit Reges Vitam non aliorum Regnantium, quibus Voluntas
pro Lege est, traducebant Licentia, sed veluti privati tene-
bantur Legibus, neque id zgre ferebant, existimantes parendo
Legibus se beatos fore. Nam ab his, qui suis indulserunt Cupi-
ditatibus, multa censebant fieri, quibus Dampna Periculaque
subirent. Et in quarto Libro sic scribit: “ Assumptus in Regem
Ethiopum vitam ducit statutam Legibus, omniaque agit juxta
Patrios Mores, neque Premio neque Pcena afficiens quenquam
preter per traditam a Superioribus Legem.” Consiniiliter loqui-
tur de Rege Saba in felici Arabia, et aliis quibusdam Regibus,
qui priscis 'Temporibus feliciter regnabant.

CAP. XIV.

Cui Princeps; Effugasti, Cancellarie, Declarationis Tue
Lumine Tenebras, quibus obducta erat Acies Mentis mex, quo
clarissime jam conspicio, quod non alio Pacto Gens aliqua,
proprio Arbitrio, unquam se in Regnum corporavit, nisi ut
per hoc se et sua, quorum Dispendia formidabant, tutius quam
antea possiderent ; quasi Pfoposito Gens hujusmodi fraudaretur,
si exinde Facultates eorum eripere possit Rex suus, quod antea’
facere ulli Hominum non licebat. Et adhuc gravius multo
Populus talis lederetur, si deinde peregrinis Legibus, etiam
ipsis forsan exosis, regerentur. Et maxime, si Legibus illis
eorum minoraretur Substantia, pro cujus vitanda Jactura, ut
pro suorum Tutela Corporum, ipsi se Regis Imperio Arbitrio
proprio submiserunt, non potuit revera Potestas hujusmodi ab
ipsis erupisse ; et tamen si non ab ipsis, Rex hujusmodi super
ipsos nullam obtineret Potestatem. E regione, aliter esse con-
cipio de Regno, quod Regis solum Auctoritate et Potentia

223

incorporatum est, quia non alio pacto Gens talis ei subjecta
est, nisi ut ejus Legibus, que sunt illius Placita, Gens ipsa,
que eodem Placito Regnum ejus effecta est, obtemperaret et
regeretur. Neque Cancellarie, a-mea hucusque Memoria elap-
sum est, quod alias in Tractatu de Natura Legis Nature, horum
duorum Regum equalem esse-Potentiam doctis Rationibus osten-
disti, dum Potestas, qui, qua eorum alter perperam agere liber
est, Libertate hujusmodi non augetur, ut posse languescere
morive, Potentia non est, sed propter Privationes in Adjecto,
Impotentia potius denominandum. Quia, ut dicit Boetius,
“* Potentia non est nisi ad Bonum ;” quod posse male agere, ut
potest Rex Regaliter regnans liberius quam Rex politice domi-
nans Populo suo, potius ejus Potestatem minuit, quam aug-
mentat. Nam Sancti Spiritus, jam confirmati in Gloria, qui
peccare nequeunt, potentiores nobis sunt, qui ad omne Facinus
libris gaudemus Habenis. Solum igitur mihi jam superest a Te
sciscitandum, “Si Lex Anglie, ad cujus Disciplinatum me
provocas, bona et efficax est ad Regimen Regni illus; ut Lex
Civilis, qua sacrum regulatur Imperium, sufficiens arbitratur ad
Orbis Regimen universi?” Si me in hoc, Demonstrationibus
congruis, indubium reddideris, ad studium Legis illius illico
me conferam, nec Te Postulationibus meis super his amplius
fatigabo.

CAP. XV:

Cancetuarius. Memoria Tue, Princeps optime, commen-
dasti, que Tibi hucusque suggessi, quare et que jam interrogas,
meritus es ut pandam. Scire Te igitur volo, quod omnia Jura
Humana, aut sunt Lex Nature, Consuetudines, vel Statuta, que
et Constitutiones appellantur. Sed Consuetudines, et Legis Na-
ture Sententiz, postquam in Scripturam redacte, et sufficienti
Auctoritate Principis promulgate fuerint, ac custodiri jubeantur,
in Constitutionem sive Statutorum Naturam mutantur, et deinde
peenalius quam antea Subditos Principis ad earum Custodiam
constringunt, severitate Mandati illius. Qualis est Legum Civi-
lium Pars non modica, que a Romanorum Principibus in magnis
Voluminibus redigitur, et eorum Auctoritate observari mandatur.
Unde Legis Civilis, ut cetera Imperatorum Statuta, jam pars illa
Nomen sortita est. Si igitur in his tribus, quasi omnis Juris

224

Fontibus, Legis Anglize Prestantiam probaverim prefulgere,
Legem illam bonam esse et efficacem ad Regni illius Regimen
etiam comprobavi. Deinde, si eam ad ejusdem Regni Utilitatem,
ut Leges Civiles ad Imperii Bonum, accommodam esse lucide
estenderim, nedum tunc Legem illam prestantem, sed et, ut
Leges Civiles, electam (ut tu optas) etiam patefeci. Igitur hee
duo Tibi ostendere satagens, sic progredior.

CAP. XVI.

Leces Anglie in his, que ipse sanciunt, Legis Nature
Ratione non meliores pejoresve sunt in Judiciis suis, quam in
consimilibus sunt omnes Leges ceterarum Nationum. Quia, ut
dicit Philosophus, V. Ethicorum: “ Jus naturale est, quod apud
omnes Homines eandem habet potentiam,” quare de ea amplius
disceptare non expedit. Sed quales sunt Anglize Consuetudines
similiter et statuta, est a modo perscrutandum, et primo Consue-
tudinum illarum visitabimus Qualitates.

CAP: AVE.

Reenum Anglia primo per Britanos inhabitatum est; deinde,
per Romanos regulatum; iterumque per Britanos, ac deinde
per Sazones possessum, qui Nomen ejus ex Britannia in Anglam
mutaverunt. Ex tunc per Danos idem Regnum parumper domi-
natum est, et iterum per Sazxones, sed finaliter per Normannos,
quorum Propago Regnum illud obtinet in presenti. Et in om-
nibus Nationum harum et Regum earum Temporibus, Regnum
illud eisdem, quibus jam regitur, Consuetudinibus continue regu-
latum est: Que, si optim non exstitissent, aliqui Regum illorum
Justitia, Ratione, vel Affectione concitati eas mutassent, aut omnino
delevissent ; et maxime Romani, qui Legibus suis quasi totum
Orbis reliquum judicabant. Similiter et alii Regum_ predic-
torum, qui solum Gladio Regnum Anglie possiderunt, quo et
Potentia simili ipsi Leges ejus exinanisse valuerunt. Neque
vero tantorum Temporum Curriculis, Leges Civiles in quantum
Romanorum inveterate sunt, neque Venetorum Leges, que super

225
alias Antiquitate divulgantur, quorum tum Insula, in Initio
Britonum, inhabitata non fuit, sicut nec Roma condita, nec ul-
lorum Mundi Regnorum Deicolarum Leges tanto evo inolite
sunt. Quare non bonas, immo non optimas esse Anglorum
Consuetudines, sicut non dicere, ita nec suspicari Fas est.

CAP. AXVilt

Sratura tunc Anglorum bona sint necne, solum restat
explorandum. Non enim emanant illa a Principis solum Vo-
luntate, ut Leges in Regnis que tantum Regaliter gubernantur,
ubi-quandoque Statuta ita Constituentis procurant Commodum
singulare, quod in ejus Subditorum ipsa redundant Dispendium
et Jacturam :- Quandoque etiam Inadvertentia Principum hujus-
modi, et sibi consulentium inertia, ipsa tam inconsulte eduntur,
quod Corruptelarum Nomina, potius quam Legum, illa merentur.
Sed non sic Anglie Statuta oriri possunt, dum nedum Principis
Voluntate, sed et totius Regni Assensu, ipsa conduntur, quo Populi
Lesuram illa efficere nequeunt, vel non eorum Commodum pro-
curare. Prudentia, etiam et Sapientia necessario ipsa esse referta
putandum est, dum non unius, aut centum solum consultorum
Virorum Prudentia, sed plusquam trecentorum electorum. Homi-
num, quali Numero olim Senatus Romanorum regebatur, ipsa
edita sunt, ut ii, qui Parliamenti Anglia Formam, Convocationis
quoque ejus Ordinem et Modum noverunt, hec distinctius referre
norunt. . Et si Statuta hec tanta Solemnitate et Prudentia edita,
Efficacie tante, quante Conditorum cupiebat Intentio, non esse
contingant, concito reformari ipsa possunt ; et non sine Commu-
nitatis et Procerum Regni illius Assensu, quali ipsa primitus
emanarunt. Patent igitur jam Tibi, Princeps, Legum Anglorum
Species omnes. Earum quoque Qualitates, ut si bone ipse sint,
metiri Tu poteris,Prudentia Tua, Comparatione: etiam. aliarum
Legum, et cum nullam tante Prestantie in Orbe reperies, eas
nedum bonas, sed Tibi optabilissimas, fore, necessario confi-
teberis.

226

CAP XIX». suidulyl

Sotum jam unum de his, quibus agitatur Animus Tuus,
restat explanandum, viz. An, ut Civiles, ita et Anglorum Leges,
frugi sint et efficaces isti Anglia: Regno, ut ill Imperio, etiam et
accommode judicari mereantur. Comparationes vero, Princeps,
ut Te aliquando dixisse recolo, odiose reputantur ; quo eas ag-
gredi non delector; Tu, an equalis sint ambe Leges meriti,
unave altera celsuis Preeconium mereatur, non ex meo Judicio,
sed ex his, in quibus earum differunt Sententie, efficacius carpere
poteris Argumentum. Nam ubi conveniunt Leges ambe, aequalis
Laudis ipse sunt ; sed in Casibus, ubi ipse dissentiunt, preestan-
tioris Legis Preeconia digna Pensatione refulgent. Quare Casus
hujusmodi aliquos jam in medium proferemus, ut que Legum
illarum eos justius meliusque definiat equa Lance valeas: pon-
derare. Et primo, ex casibus maximi Ponderis Exemplum
proponamus.

CAP. XX.

Si coram Judice Contendentes ad Litis perveniant Contesta-
tionem, super materia Facti, quam Legis Anglie periti Exitum
Placiti appellant ; Exitus hujusmodi Veritas per Leges: Civiles,
Testium Depositione probari debet, in qua duo Testes’ idonei
sufficiunt. Sed per Leges Angliw, Veritas illa non, nisi XII-
Hominum de Vicineto, ubi Factum hujusmodi supponitur, Sacra~
mento, Judici constare poterit. Queritur igitur, quis horum du-
orum Processuum tam diversorum rationabilior censeri debeat,
et efficacior ad Veritatem, que sic queritur, revelandam. Quia
Lex, que eam certius meliusque ostendere potest, preestantior in
hoc est Lege altera, que non tante Efficacie est et Virtutis ;
quare in hujus Rei Indagine sic procedimus.

CAP. XXI.

Perr Leges Civiles, Pars, que in Litis Contestationem affir-
mativam dicit, Testes producere debet, quos ipse ad Libitum

227

suum nominabit. Negativa autem probari non potest, viz.
directe, licet possit per Obliquum: Exilis quippe creditur esse
Potentiz, minoris quoque Industria, qui de omnibus quos nos-
cit Hominibus duos reperire nequit, ita Conscientia et Veritate
vacuos, ut Timore, Amore, vel Commodo, omni velint con-
traire Veritati. Hos potest tunc ipse in Testes producere in
Causa sua. Et si contra eos Pars altera dicere velit, vel contra
eorum Dicta, non semper continget eos, eorum quoque Mores
aut Facta, apud contradicere volentem, agnosci, ut ex eorum
Feeditate et Vitiis Testes illi possit reprobari. Et dum eorum
Dicta Affirmativam contineant, non facile poterunt illa per Cir-
cumstantias aut obliqua alia improbari: Quis tunc poterit suorum
aut sui ipsius, sub Lege tali, vivere securus, dum cuilibet sibi
inimicari volenti Lex tale prestat Subsidium? Et qui iniqui
duo tam incauti sunt, quo facti, de quo ipsi examinabuntur in
initio, non, antequam in Testes producantur, oculte fingant Ima-
ginem et Figuram, componant quoque eidem omnes Circum-
stantias, quales sibi fuissent, si illud in Veritate constitisset ?
“ Prudentiores namque, ut dicit Dominus, sunt Filiit hujus Mundi
quam Filit Lucis.” Sic Jesabel sceleratissima Testes duos, Filios
Belial, contra Nabot in Judicio produxit, quo ipse vitam per-
didit, et Achah Rex ejus Vineam possidebat. Sic duorum Senum
etiam Judicum Testimonio, mortua fuisset pro Adulterio Uxor
castissima Susanna, si non eam miraculose liberasset Dominus
inexcogitabili Prudentia, quam et Natura non habuit Puer
junior, nondum etate provectus. Et si ipsos, Depositione sua
varia, convicerat Puer ille esse falsarios ; quis, nisi solus Domi-
nus, novisse poterit eos in Dictis suis taliter variaturos? dum,
non de Arboris Natura, sub qua imputatum Facinus fiebat,
Lex aliqua eos arctabat reminisci. Quia Testes Sceleris cujus<
que considerare non putantur omnia Umbracula et cetera vicina.
illi Facto, que ad Aggravationem vel Detectionem Criminis
illius minime operantur. Sed dum de Arborum Speciebus
Judices illi nequam ultro deponentes variabant, eorum Dicta
ipsos veritatis fuisse Preevaricatores demonstrabant ; quo et Tali-
onis Poenam merito incurrerunt. Nosti et Tu, Princeps divine,
qualiter jam tarde Magister Johannes Fringe, qui postquam
Annis tribus Sacerdotali functus est Officio, duorum iniquorum.
Depositione, qui eum antea Juvenculam quandam affidasse tes~
tati sunt, sacrum Presbyteratus Ordinem relinquere compulsus
est, et Matrimonium cum Femina illa consummare. Cum qtas:
Pg

228

postquam Annis 14 moratus, Sobolem septimam suscitaverat,
demum de Crimine lewse Majestatis in Tuam Celsitudinem
conjurato convictus, subornatos fuisse Testes illos, et falsum
dixisse Testimonium, in Mortis suze Articulo, coram omni
Populo fassus est. Qualiter et spe perverti Judicia, falsorum
Testium medio, etiam sub optimis Judicibus, non est Tibi
inauditum, nec incognitum Mundo, dum Scelus illud (proh
Dolor!) creberrime committatur.

CAP. XXII.

Non igitur contenta est Lex Francie, in Criminalibus, ubi
Mors imminet, Reum Testibus convincere, ne Falsidicorum
Testimonio Sanguis innocens condemnetur. Sed mavult Lex
illa Reos tales Torturis cruciari, quousque ipsi eorum Reatum
confiteantur, quam Testium Depositione, qui sepe Passionibus
iniquis, et quandoque Subornatione Malorum, ad Perjuria sti-
mulantur. Quali Cautione et Astutia, Criminosi etiam et de
Criminibus suspecti, tot Torturarum in Regno illo Generibus
affiguntur, quod fastidit Calamus ea Literis designare. Quidam
vero in Equueleis extenduntur, quo eorum rumpuntur Nervi,
et vene in Sanguinis Fluenta prorumpunt. Quorundam vero,
diversorum Ponderum Pendulis, dossolvuntur Compagines et
Juncture. Et quorundam gaggantur Ora, usque dum per illa,
tot Aquarum infundantur Fluenta, ut ipsorum Venter Montis
tumescant more; quo tunc Venter ille, Fossorio vel simili, per-
cussus Instrumento, per os aquam illam evomat, ad instar
Balen, que cum Halecibus et aliis Pisciculis mare absorbuit,
Aquam despumat ad Altitudinem Arboris Pini. Piget (proh
Pudor !) jam penna exquisitorum ad hec Cruciatuum enarrare
immania. Nam eorum variatus Numerus vix notari poterit
magna in Membrana, Leges etiam ipse Civiles, deficiente Tes-
tium Copia, in Criminalibus, Veritatem consimilibus extorquent
Tormentis. Qualiter et faciunt etiam quamplurima Regna. Sed
quis tam duri Animi est, qui semel ab atroci tanto Torculari
laxatus, non potius innocens ille omnia fateretur Scelerum
Genera, quam Acerbitatem sic experti iterum subire Tormenti,
et non semel mori mallet, dum mors sit ultimum Terribilium,
quam toties occidi, et totidem Gehennales Furias morte ama-

229 ‘

riorés sustinere? Et nonne, Princeps, Tu novisti Criminosum
quendam, qui inter Tormenta hujusmodi militem Nobilem, pro-
bum, et fidelem de Proditione quadam, super qua, ut asseruit,
ipsi duo insimul conjurarunt, accusare, quod et constanter post-
modum ipse fecit, a Torturis illis relaxatus, ne iterum eadem
Tormenta ipsa ipse subiret. Sed demum, cum ex Peenis illis
Jesus usque ad Mortis Articulum infirmaretur, ultimum quoque
Viaticum, Christi videlicet Corpus, sumpsisset, juravit tune
super Corpus illud, et per Mortem, quam tunc protinus cre-
didit se passurum, militem illum innocentem fuisse, et immunem
de omnibus in quibus eum accusavit ; tamen ait Poenas, in quibus
ipse Tempore Delationis suze fuerat, ita atroces exstitisse, quod
priusquam eas iterum experiretur, etiam eundem Militem ille
iterum accusaret, similiter et Patrem proprium, licet tunc in
Mortis Limine, quam non credidit se posse evadere, fuerit
constitutus ; nec vero ipse Mortem, quam tunc metuit, evasit.
Sed demum suspensus, Tempore Mortis sue, ipsum Militem
purgavit ab omni Crimine, de quo dudum defamavit. Taliter,
proh Dolor, et quam plures alii miseri faciunt, non veritatis
Causa, sed solum urgentibus Torturis arctati; quid tunc Cer-
titudinis resultat ex Confessionibus taliter compressorum? Czete-
rum si innocens aliquis non immemor salutis eterne, in hujus-
modi Babylonis Fornace, cum tribus Pueris benedicat Domino,
nec mentiri velit in Perniciem Anime sue, quo Judex eum
pronunciet innocentem, nonne eodem Judicio Judex ille seipsum
reum judicat omnis Sevitie et Poenarum, quibus innocentem
affixit? O quam crudelis est Lex talis, que dum innocentem
dampnare nequit, Judicem ipsa condemnat? Vere non Lex
Ritus talis esse perhibetur, sed potius semita ipsa est ad Gehen-
nam. O Judex, quibus in Scholis didicisti te presentem ex-
hibere, dum Peenas luit Reus? Executiones quippe Judiciorum
in Criminosos per ignobiles fieri convenit ; nam earum Actores
infames solent esse ipso Facto, quo et ipsi deinde ad Judicialem
Apicem redduntur indigni. Non enim per Angelos, sed per
Deemones, exequi facit Dominus Judicia sua, reddita in Damna-
tos. Nec revera in Purgatorio cruciant Animas, quamvis pre-
destinatas ad Gloriam, Angeli boni, sed mali. Maligni etiam
Homines sunt, per quos Dominus in hoc Mundo miseris tribuit
Malum Poenez. Nam cum dixerat Deus, I. Regum, in Capitulo
vicesimo secundo, “Quis decizpiet mihi Ahab?’ Malus erat
Spiritus, ille, qui respondit, “ Ego ero Spiritus Mendax in Ore

230

omnium Prophetarum ejus.” Non enim decuit Spiritum bonum
exequi talia, licet a Domino prodiit Judicium, quod Achab Men--
dacio deciperetur. Sed dicet Judex forsan, Ego nihil egi Mani-
bus meis in Cruciatibus istis. Sed quid refert propriis facere
Manibus, an presentem esse, et quod factum est Mandato suo
iterum atque iterum aggravare. Solum Magister Navis est, qui
eam ducit ad Portum, licet ejus Mandato alii agitent Proram.
Credo quod Vulnus, quo sauciatur Animus Judicis Poenas hujus-
modi infligentis, nunquam in Cicatricem veniet, maxime dum
recolit Acerbitatem Poenarum miseri sic afflicti.

CAP. XXII.

Prarerga, si ex Contractibus, illatisve Injuriis, vel Heere-
ditatis Titulo, Jus accreverit Homini agendi in Judicio: Si
Testes non fuerint, vel si qui fuerint moriantur, succumbet ipse
Agens in Causa sua, nisi Jus suum probare valeat inevitabilibus
conjecturis quod facere crebro non contingit. Quare de Dominiis
et aliis Possessionibus Jure Civili regulatis, similiter et in
omnibus Actionibus cadentibus sub eodem Jure; Actiones Agen-
tium pro Defectu Testium quam pluries suffocantur, ita quod
earum vix Pars media optatum Finem sortiatur. Qualis tunc
est Lex hujusmodi, que injuratis taliter deficit in Justitia red-
-denda? dubito an justa vocari mereatur, quia in eadem Lege
scribitur, quod “ Justitia, unicuique tribuit quod suum est,” quod
non facit Lex talis.

CAP. XXIV.

Exposrra jam Forma, qua Leges Civiles de Veritate Facti
in Judicio deducti Judicem erudiunt, superest ut Modum quo
Leges Anglia hujusmodi Facti eliciunt Veritatem, etiam doceamus.
Nam ambarum Legum Formulis contigue positis, Qualitates
earundem lucidius eminebunt: Cum dicat Philosophus, quod
“ Opposita juxta se posita'magis apparent.” Sed in hoe, Ora-
torum More (Prohemii loco) quedam prenarrare congruet,

a
231

quorum Agnitione, deinde tractanda clarius patere queant ; quare
sie procedimus. Regnum Anglie per Comitatus, ut Regnum
Francie per Ballivatus distinguitur ; ita ut non sit Locus in
Anglia, qui non sit infra Corpus alicujus Comitatus. Comitatus
- quoque dividuntur in Hundreda, que alicubi Wapentagia nun-
cupantur. Hundreda vero dividuntur per Villas, sub quarum
Appellatione continentur et Burgi atque Civitates Villarum etenim
Metz non muris, Adificiis, aut stratis terminantur, sed Agro-
rum Ambitubus, Territoriis Magnis, Hamiletis quibusdam, et
multis aliis, sicut Aquarum, Boscorum et Vastorum Terminis,
quee jam non expedit Nominibus designare ; quia vix in Anglia
est Locus aliquis, qui non infra Villarum ambitus contineatur,
licet privilegiati Loci quidam infra Villas de eisdem Villis Pars
esse non censentur. Preterea in quolibet Comitatu est Officiarius
quidam unus, Regis Vicecomes appellatus, qui inter cetera sui
Officii Ministeria omnium Mandata et Judicia Curiarum Regis
in Comitatu suo exequenda exequitur, cujus Officium annale est,
quo ei post Annum in eodem ministrare non licet, nec duobus
tune sequentibus Annis ad idem Officium reassumetur. Offi-
ciarius iste sic eligitur. Quolibet Anno in Crastino Animarum,
conveniunt in Scaccario Regis omnes Consiliarii ejus tam Domini
Spirituales et Temporales, quam alii omnes Justiciarii, omnes
Barones de Scaccario, Clericus Rotulorum, et quidam alii Offi-
ciarii, ubi ii omnes communi Assensu nominant de quolibet
Comitatu tres Milites vel Armigeros, quos inter ceteros ejusdem
Comitatus ipsi opinantur melioris esse Depositionis et Fame,
et ad Officium Vicecomitis Comitatus illius melius dispositos ;
ex quibus Rex unum tantum eligit, quem per Literas suas
Patentes constituit Vicecomitem Comitatus de quo eligitur pro
Anno tune sequente ; sed ipse, antequam Literas illas recipiat,
jurabit super Dei Evangelia, inter Articulos alios, quod bene,
fideliter, et indifferenter exercebit et faciet Officium suum toto
Anno illo, neque aliquid recipiet Colore aut Causa Officii sui,
ab aliquo alio quam a Rege. His jam sic presuppositis, ad
eorum, que querimus, Indaginem procedamus.

” SR
© Qvotiescuneve Contendentes in Curiis: Regis Anglia ad
Exitum Pilaciti super Materia Facti deveneriit, concito Justi-

232
ciarii per Breve Regis scribunt Vicecomiti Comitatus, in» quo
Factum illud fieri’ supponitur, quod ipse venire faciat coram
eisdem Justiciariis ad certum Diem per eos limitatum, duodecim
probos et legales Homines, de Vicineto, ubi illud Factum suppo-.
nitur ; qui neutram Partium sic placitantium ulla Affinitate attin-
gunt ; Ad recognoscendum super eorum Sacramenta, si Factum
illud factum fuerit, sicut una earundem Partium dicit ; vel non,
sicut altera Pars negat. Quo adveniente Die, Vicecomes retur-
nabit Breve predictum coram eisdem Justiciariis, una cum:
Panello Nominum eorum, quos ipse ad hoc summonuit, quos
(si venerint) utraque Pars recusare poterit dicendo, quod Vice-
comes Panellum illud favorabiliter fecit pro Parte altera, viz. de
Personis minus indifferentibus: Que Exceptio, si comperta
fuerit vera per Sacramentum duorum Hominum de’ eodem
Panello ad hoc per Justiciarios electorum, mox Panellum illud
quassabitur ; et Justiciarii tune scribent Coronatoribus ejusdem
Comitatus quod ipsi novum faciant Panellum. Quod cum fece-
rint, si et illud consimiliter repertum fuerit vitiatum, etiam
et illud quassabitur. Et tunc Justiciarii eligent duos de Clericis
Curie illius, vel alios de eodem Comitatu, qui in Presentia Curie
per eorum Sacramenta facient indifferens Panellum, quod deinde
per nullam Partium illarum calumniabitur; sed cum venerint
sic impanellati i in Curia, quelibet Partium excipere potest contra
Personam*cujuscunque eorum, sicut et potest in omni Casu
et omni'Tempore, quo aliquis qualitercunque impanellatus com-
paruerit in Curia super Veritate Exitus hujusmodi juraturus,
dicendo, quod impanellatus ille est consanguineus vel Affinis
Parti alteri, vel Amicitia quacunque tali sibi conjunctus, quod
indifferens ipse non est ostendere inter eos Veritatem. | Qualium
Exceptionum tot sunt’ Genera et Species, quod non licet eas
brevi' explicare Sermone. Quarum si aliqua reperta fuerit vera,
non tune jurabitur ille contra quem Exceptio illa proponitur,
sed cancellabitur Nomen ejus in Panello. Sic quoque fiet de
omnibus Nominibus impanellatorum quousque XII. eorum juren-
tur ita indifferentes, quod versus eos neutra Partium ‘habeat
aliquam Materiam Calumpnie. Horum autem XIJ. ad minus
IV. erunt de Hundredo, ubi Villa in qua Factum, de quo con-
tenditur, fieri supponitur, sita est ; e¢ quilibet Juratorum hujus-
modi habebit Terras vel Redditus pro Termino Vita sue, ad minus
ad Valorem annuum XL. s. . Et hic Ordo observatur in omnibus
Actionibus et Causis Criminalibus,. realibus et personalibus, pree-

233

terquam ubi Damna vel Debitum in personalibus non excedunt
XL. Marcas Monete Anglie, quia tune non requiritur, quod
Juratores in Actionibus hujusmodi tantum expendere_possint.
Habebunt tamen Terram vel Redditum ad Valorem competen-
tem, juxta Discretionem Justiciariorum, alioquin ipsi minime
jurabuntur, ne per Inediam et Paupertatem Juratorum hujus--
modi, de facili valeant corrumpi aut subornari. Et si per tales
Exceptiones, tot Juratorum Nomina in .Panello cancellentur,
quod. non remaneat Numerus sufficiens ad faciendum inde jura-
tam, tunc mandabitur Vicecomiti per Breve Regis, quod ipse
apponat plures Juratores, quod et sepius fieri potest, ita quod
Inquisitio Veritatis super Exitu Placiti non remanebit ob De-
fectum Juratorum. Et hec est Forma, qualiter Juratores et
Veritatis hujusmodi Inquisitores eligi debent in Curia Regis,
similiter et jurari ; quare, quomodo ipsi de Veritate illa. decenda
onerari.debent et informari, jam restat ut queramus. .

CAP. XXVI.

Juratis demum in Forma predicta XII. probis et lega-
libus Hominibus habentibus ultra Mobilia ‘sua Possessiones,
ut. preedicitur, sufficientes, unde eorum Statum ipsi continere
poterunt, et nulli Partium suspectis nec invisis, sed eisdem vici-
nis, legetur in Anglico coram eis’ per Curiam totum Recordum et
Processus Placiti, quod pendet inter Partes, ac dilucide expo-
netur eis Exitus Placiti, de cujus veritate Jurati illi Curiam
certificabunt ; quibus peractis, utraque Partium per se vel- Con-
siliarios suos, in Preesentia Curie, referet et manifestabit eisdem
Juratis omnes et singulas Materias. et Evidentias, quibus eos
docere se posse credit Veritatem Exitus taliter placitati. Et
tunc adducere potest utraque Pars coram eisdem. Justiciariis
et Juratis omnes et singulos Testes, quos pro Parte sua ipsa
producere velit, qui super sancta Dei, Evangelia, per Justiciarios
onerati, testificabuntur omnia que cognoscunt probantia Veritatem
Factli, de, quo Partes contendunt. Et si Necessitas -exegerit;
dividantur Testes hujusmodi, .donec ipsi deposuerint quicquid
Velint, ita quod Dictum unius non docebit aut-concitabit eorum
alium ad consimiliter testificandum. Quibus consummatis, post-

234

quam Juratores illi demde ad eorum Libitum, super Veritate
Exitus hujusmodi, Deliberatione quantam ipsi optabunt Collo-
quium habuerint, in Custodia Ministrorum Curie, in Loco eis ad
hoc Assignato, ne interim eos aliqui subornare valeant, revenient
illi in Curiam, et certificabunt Justiciarios super Veritate Exitus
sic juncti, in Presentia Partium (si interesse velint) et maxime
petentis. Quorum Juratorum Dictum per Leges Anglie Vere-
dictum nuncupatur, et tunc secundum hujusmodi Veredicti Qua-
litatem, Justiciarii reddent et formabunt judicium suum. Tamen,
si Pars altera, contra quam veredictum hujusmodi prolatum est,
conqueratur se per illud injuste esse gravatum, prosequi tunc
potest Pars illa, versus Juratores illos, et versus Partem que
obtinuit, Breve de Attincta, virtute cujus, si compertum fuerit
per Sacramentum XXIV. Hominum, in Forma prenotata, retor-
natorum, electorum, et juratorum, qui multo majora habebunt
Patrimonia, quam Juratores primi, quod iidem primi Juratores
Salsum facerunt Sacramentum, Corpora eorundem primorum Jura~
torum Prisone Regis committentur, Bona eorum confiscabuntur,
ac omnes Possessiones eorundem in Manus regis capientur, Domus
quoque eorum et Addificia prosternentur, Bosci succidentur, et
Prata arabuntur, ipsi etiam Juratores primi ex tunc infames
erunt, nec alicubi recipientur in Testimonium Veritatis: et Pars,
que succubuit in priori Placito, restituetur ad omnia, que ipsa —
perdidit Occasione ejus. Quis tunc (etsi immemor Salutis Anime
sue fuerit) non Formidine tante Pcoene, et Verecundia tante
Infamiz, Veritatem non diceret sic juratus? Et si unus forsan
tantus sui Honoris prodigus esse non pepercerit, aliqui tamen
Juratorum tantorum Famam suam non negligent, neque Bona
et Possessiones suas taliter distrahi patientur, propria Culpa sua.
Nonne jam hic Ordo revelandi Veritatem, potior et efficacior est,
quam est Processus, qualem pariunt Civiles Leges? non hic
pereunt Cause aut Jus alicujus, per Mortem aut ob Defectum
Testium; non hic producuntur Testes ignoti, conductitii, pau-
peres, vagi, inconstantes, aut quorum Conditiones vel Malitie
ignorantur. Vicini sunt Testes isti, de propriis vivere potentes,
Fame integre, et Opinionis illese, non per Partem in Curiam
ducti, sed per Officiarium nobilem et indifferentem electi, et
coram Judice venire compulsi. Isti omnia sciunt, que Testes
deponere norunt, et isti Testium productorum agnoseunt Con-
stantias, Inconstantiasque et Famam. Quid ultra! vere nihil
est, quod Veritatem dubii, de quo contendi poterit, detegere

235

valebit, quod Juratoribus talibus latere quomodo libet potest
aut ignorari, dummodo possibile sit illud venire posse in Agni-
tionem humanam.

CAP. XXVII.

Sep quomodo in Criminalibus Leges Anglie scrutantur
Veritatem etiam rimare pernecessarium est, ut et in eis plenarie
agnita ambarum Legum Forma, que earum efficacius latentem
revelat Veritatem certius agnoscamus. Si Reus quispiam de
Felonia aut Proditione in Anglia rettatus, Crimen suum coram
Judicibus dedicat, mox Vicecomes Comitatus, ubi Facinus illud
commissum est, venire faciet coram eisdem Judicibus viginti
quatuor probos et Legales Homines de Vicineto Ville, ubi illud
factum est, qui rettatum illum nulla Affinitate attingunt, et
quorum quilibet C. s. habeat Terre et Reditus, ad certificandum
Judices illos super Criminis illius Veritate. Quibus comparen-
tibus, Rettatus ille eos calumpniare potest, eadem Forma, qua
in Actionibus realibus fieri debere superius describitur. Et
insuper Reus ipse in Favorem vite sue calumpniare potest XXXV.
Homines, quos ipse maxime formidat, qui ad ejus Calumpniam
cancellabuntur in Panello, aut Signis talibus notabuntur, quod
(ut Verbis Legis utar) illi super eum non transibunt, licet ipse
nullam Causam assignare sciat Exceptionis seu Calumpnie sue.
Quis tunc mori posset inique in Anglia pro Crimine, cum tot
Juvamina habere ille poterit ob favorem Vite suz, et non nisi
Vicini ejus, probi et fideles Homines, versus quos ipse nullam
habet Materiam Exceptionis, eum condemnare poterunt? Mal-
lem revera viginti facinorosos Mortem Pietate evadere, quam
justum unum injuste condemnari. Nec tamen Reum quempiam
sub hac Forma, Reatus sui Poenam evadere posse suspicandum
est, dum ejus Vita et Mores Timori deinceps erunt eis, qui
eum sic purgarunt a Crimine. In hoc equidem Processu nihil
est crudele, nihil inhumanum, nec ledi poterit innocens in Cor-
pore aut Membris suis. Quare nec formidabit ille Calumpniam
Inimicorum ejus, quia non torquebitur iste ad Arbitrium ip- |
sorum. Sub hac igitur Lege vivere quietum et securum est.
Judica ergo, Princeps optime, que Legum harum Tibi elec-
tissima foret, si Tu privatam spirares Vitam.

236

CAP. XXVIII.

Cui Princeps, Arduum ambiguumve, Cancellarie, non con-
spicio, quod morosum me titubantemve redderet in Electione
Rei, quam interrogas. Nam quis non sub Lege, qua securam
ducere posset vitam, vivire potius eligeret, quam sub Lege tali,
sub qua inermem, indefensumque se semper redderet Sevitie
omnium Inimicorum ejus? Vere tutus quisquam esse non po-
terit in Corpore aut in Bonis, quem Inimicus ejus (in omni
Causa) convincere poterit Testibus duobus etiam ignotis, per
ipsummet electis et productis. Et licet quis Mortem, per Dicta
eorum, subire non cogatur, parum tamen relevatur ipse qui
Mortem evasit, Contractione Nervorum et Membrorum suorum,
atque Corporis ejus Languore perpetuo. Tali revera Discrimini
impellere potest Inimici Astutia omnem Hominem qui sub Lege
degit, quam tu jamdudum explicasti. Sed tale Malum operari
nequeunt Testes, qui Depositiones suas faciunt in Presentia
duodecim Fide dignorum Virorum facto Vicinorum, de quo
agitur, et circumstantiis ejus; qui et noscunt eorundem Testium
mores, maxime si vicini ipsi fuerint, noscunt etiam et si ipsi
sint Credulitate digni. Omnes etiam duodecim tales latere
omnino non poterit, quicquid actum est, per aut inter Vicinos
eorum. Nosco namque Ego certius, que jam aguntur hic in
Borro, ubi sum modo conversatus, quam que in Anglia fiunt.
Nec effugere posse puto Notitiam probi Viri ea, que aguntur,
licet quodammodo occulte, prope Domicilium ejus. Sed tamen
cur predicta Lex Anglie, que tam frugi et optabilis est, non
est toti Mundo communis, vehementer admiror.

CAP. XXIX.

Cancetarius. Juvenis recessisti, Princeps, ab Anglia,
quo Tibi ignota est Dispositio et Qualitas Terre illius, quas si
agnoveris, et ceterarum Regionum Emolumenta Qualitatesque
eisdem comparaveris, non admiraberis ea, quibus jam agitur
Animus tuus. Anglia sane tam fertilis est, quod Quantitate ad’
Quantitatem comparata, ipsa ceteras omnes quasi Regiones exsu~
perat ubertate Fructuum; etiam suum -ultro ipsa. profert, vix

934
Industria Hominis concitata. Nam Agri ejus, Campi, Saltus, et
Nemora, tanta Foecunditate germina ebulliunt, ut inculta illa seepe
plus Commodi afferant Possessoribus suis, quam arata, licet feri-
lissima ipsa sint Segetum, et Bladorum. Includuntur quoque in
Terra illa Pasturarum Arva, Fossatis et Sepibus, desuper Arbo-
ribus plantatis, quibus muniuntur a Procellis et zstu Solis eorum
Greges et Armenta ; ipseque Pasture ut plurimum irrigue sunt,
quo infra earum Claustra reclusa Animalia Custodia non egent
per Diem, nec per Noctem. Nam ibi Lupi non sunt, Ursi, nec
Leones; quare de Nocte Oves eorum incustodite in Campis
recumbunt, in Caulis et Ovilibus, quibus impinguantur Terre
eorum. Unde Homines Patriz illius vix operis Sudore gravantur,
quare spiritu ipsi magis vivunt, et fecerunt Patres antiqui, qui
pascere malebant Greges quam Animi Quietem Agriculture sol-
licitudine turbare. Ex quibus Homines Regionis istius apti magis
redduntur et dispositi ad discernendum in Causis, que magni
sunt Examinis, quam sunt Viri, qui Telluris Operibus inhabi-
tantes ex Ruris Familiaritate Mentis contrahunt Ruditatem. Regio
etiam illa ita respersa, refertaque est Possessoribus Terrarum et
Agrorum, quod in ea Villula tam parva reperiri non poterit,
in qua non est Miles, Armiger, vel Pater familias, qualis ibidem
Franklain vulgariter nuncupatur, magnus ditatus Possessionibus ;
necnon libere tenentes alii, et Valecti plurimi, suis Patrimoniis
suficientes ad faciendum Juratam in Forma prenotata. Sunt
namque Valecti diversi in Regione illa, qui plus quam sexcenta
Scuta per Annum expendere possunt; quo Jurate superius
descripte szpissime in Regione illa fiunt, prasertim in ingen-
tibus Causis, de Militibus, Armigeris et allis, quorum Posses-
siones in universo excedunt duo millia scutorum per Annum.
Quari cogitari nequit tales subornari posse, vel perjurari velle,
nedum ob Timorem Dei, sed et ob Honorem suum conser-
vandum, et Vituperium et Dampnum quoque inde consequuti-
vum, evitandum, etiam ne eorum Heredes ipsorum ledantur
Infamia. Taliter, Fili Regis, disposita, inhabitataque non sunt
aliqua alia Mundi Regna.

Nam licet in eis sint Viri magne potentie, magnarum Opum
et Possessionum, non tamen eorum unus prope moratur ad alte-
rum, ut in Anglia tanti morantur Viri, nec tanta, ut ibi, Here-
ditorum est Copia et Possidentium Terras.

Vix enim in Villata una Regionum alarum reperiri poterit
Vir unus Patrionio sufficiens, ut in Juratis ipse ponatur. Nam

238

raro ibidem, aliqui preter nobiles reperiuntur Possessores Agro-
rum, aliorumve immobilium, extra Civitates et muratas Villas.
Nobiles quoque ibidem Pasturarum Copiam non habent, et vineas
colere aut Aratro Manus apponere Statui eorum non convenit,
tamen in Vineis et Terris arabilibus consistit Substantia Posses-
sionum eorum, exceptis solum Pratis quibusdam adjacentibus
magnis Riparis, et Exceptis Boscis, quorum Pasture communes
sunt Tenentibus et Vicinis suis. Quomodo tunc in Regionibus
talibus Jurata fieri poterit ex duodecim probis Hominibus de
Vicineto, ubi Factum aliquod in Judicio deducitur, cum vicini
dici non poterunt, qui tanta Distantia distinguuntur? Vero
remotos multum a Facto duodecim Juratos ibidem esse oportebit,
postquam Reus in Regionibus illis triginta quinque (sine assig-
nata Causa) de propinquioribus calumniaverit. Quare, aut de
multum remotis a Facto, de quo contenditur, qui Veritatem
Facti non agnoscunt, in Regnis illis oportebit facere Juratam,
aut de Pauperibus, quibus non est verecundia Infamiz, nec
Timor Jacture bonorum suorum, cum ipsa non sint; ipsi etiam,
Rusticitatis Ruditate obcecati, Veritatis claritatem nequeunt
intueri.

Non igitur mireris, Princeps, si Lex, qua in Anglia Veritas
inquiritur, alias non pervagetur Nationes, ipse namque, ut An<
glia, facere nequeunt sufficientes consimilesque Juratas.

CAP. XXX.

Tune Princeps. Comparationes odiosas esse licet dixerimus}
Lex tamen Civiles, in Comparatione per Te facta, omni se
purgavit a Crimine: Quia, licet ei Legem Anglie tu pretuleris;’
Odium inde ipsa non meretur, dum neque eam neque Conditores
ejus increpasti ; sed solium Patriam, ubi ulla regit, Causam esse
demonstrasti, quod non tam obtabili Processu, ut Lex Anglia,
ipsa in dubiis elicit Veritatem. Legem vero Anglie, in Casu jam
per te disputato, accommodatiorem esse Regno illi, quam est Lex
Civilis, ambigere non sinimur, quo eam pro Civili commutare
non appetimus: Sed tamen hec Legis Anglie Praeminentia ab
alterius Crimine non evenit, solum enim eam Anglie Fertilitas
sic causavit.

239

CAP. XXXII.

Srp, licet non infime, Cancellarie, nos dilectet Forma, qua
Leges Anglia in Contentionibus relevant Veritatem, tamen,
an Modus ille sacre repugnet Scripture, vel non, paululum
agitamur. Ait namque Dominus Phariseis, Johannis VIII. “ In
Lege vestra scriptum est, quia duorum Hominum Testimonium
verum est ;” et huic applaudens Dominus inquit, “ Ego sum qui
Testimonium perhibeo de me ipso, et Testimonium perhibet de me,
qui misit me, Pater.” Phariswi quippe Judai erant, unde idem
erat dicere in Lege vestra scriptum est, et in Lege Mosaica
(que a Domino per Mosen Filiis Israel prolata fuit) scriptum est.
Quare huic Legi contraire, Legi est Divine refragari, quo sequi-
tur, quod Lex Angliz, si ab hac Lege discedat, a Lege divina, .
cui reluctari non licet, ipsa discedit. Scribitur etiam, Matthei
XVIII. Quod Dominus (loquens de Correctione fraterna) inter
alia sic ait, “$i autem non te audierit frater tuus, adhibe tecum
adhuc unum aut duos, ut in Ore duorum vel trium stet omne
verbum.” Si in Ore duorum vel trium, Dominus omne Verbum
statuerit, frustra plurium Hominum queritur in Dubiis Vere-
dictum. Nemo enim potest melius aut aliud Fundamentum
ponere, quam posuit Dominus. |

Hee sunt, Cancellarie, que me, de Legis Anglize Processu
in Probationibus, aliquantulum conturbant. Quare, quid. his
respondendum est a Te, doceri deposco.

CAP. XXXII.

Cancetrarivs. Non his, quibus turbaris, Princeps, con-
trariantur Leges Angliz, licet aliter quodammodo ipse in dubiis.
eliciant veritatem. Quid duorum Hominum Testimonio obest
Lex illa. Generalis Concilii, qua cavetur, ut non nisi duodecim
Testium Depositione Cardinales de Criminibus convincantur ?
Si verum est duorum Testimonium, a fortiori Testimonium
duodecim verum judicari debet, dicente Juris Regula, “ Plus.
semper in se continet quod est minus.’ Supererogationis Meritum
promittebatur Stabulario, si plus quam duos, quos recepit,.

240 7
Denarios, ipse in vulnerati Curationem erogasset. Nonne plus
quam duos aut tres Testes producere oportebit quempiam, qui
absentem se fuisse probare nititur, Tempore Criminis sibi im-
positi, quod per duos aut tres Testes Adversarius ejus probavit,
vel probare paratus est? Sic et qui Testes de Perjurio con-
vincere satagit, multo illis plures producere necesse habet, quo
non semper II. vel III. Hominum Testimonium verum esse
judicabitur ; sed intelligenda est Lex illa, quod minore Testium
Numero quam II. veritas in dubiis non debet exquiri, ut patet
per Bernardum Extra. de Testi. ca. licet in Glossa ordinaria,
ubi ipse assignat diversos Casus, in quibus per Leges, plures
quam tres oportet producere Testes, viz. in aliquibus eorum V.
et in aliquibus septem. Per duos etiam Testes Veritatem probari
posse, cum non aliter ipsa pateret, utique Leges Angliz affir-
mant. Nam si gue supra altum Mare extra Corpus cujuslibet
Comitatus Regni illius fiant, que postmodum in Placito coram
Admirallo Anglie deducantur, per Testes illa juxta Legum
Angliz Sanctiones probari debent. Consimiliter quoque coram
Constabulario et Mariscallo Anglie fieri solitum est de facto,
quod in Regno alio actum est, dummodo ad Jurisdictionem
Curie Constabularii Cognitio ejus pertineat. Etiam et in uriis
quarundam Libertatum in Anglia, ubi per Legem Mercatoriam
proceditur, probant per Testes Contractus inter Mercatores extra
Regnum factos. Quia in Casibus his non reperiuntur Vicini,
per quorum Sacramenta Jurate ex duodecim Hominibus fieri
possunt, prout de Contractibus et aliis Casibus infra Regnum
Angliz emergentibus, est fieri consuetum. Similiter, si carta,
in qua Testas nominantur, deducatur in Curia Regis, Processus
tunc fiet erga Testes nominantur, Deducatur in Curia Regis,
Processus tunc fiet erga Testes illos, ipsi quoque recognoscent
simul cum XII. Juratoribus per eorum Sacramenta utrum charta
illa sit factum ejus, cujus supponitur, annon. Quare, Legem,
qua’ Testibus Veritas extorquetur, Lex Anglie non condemnat,
maxime cum Necessitas id deposcat: quia et sic faciunt ipse
Leges Anglie nedum in Casibus jam notatis, sed etiam m qui-
busdam Casibus -aliis, quos non expedit hic notare. Sed per
Testes solum “Lex ipsa nunquam: Litem dirimit, que per Jura-
tam XII. Hominum decidi poterit, cum sit modus iste ad veri-
tatem: eliciendam multo potior et efficacior, quam est: Forma
aliquarim:aliarum Legum Orbis, et: remotior fa Corruptionis et
Subornationis»periculo.; Nec potest» hee: procedendi: Forma: in

241

Causa aliqua ob Defectum Testium deperire, eque Testium
(si qui fuerint) Attestatio Effectum debitum non sortiri, nec
perjurari t duodecim Homines hujusmodi, quin pro eorum
Crimine ibe cecbissine puniantur, et nihilominus Pars, per
eorum Depositionem gravata, Remedium debitum consequetur: |
ac, non fient hec per extraneorum aut ignotorum Hominum
Arbitrium aut Dictamen, sed per proborum Nobilium, et Fide
dignorum, vicinorum Partibus, Sacramentum, quibus Partes ille
nullam habent Causam Calumpnie aut Diffidentie de eorum
Dicto. O quam horrendum et detestabile Discrimen sepe
aecidit ex Forma per Depositionem Testium procedendi! Nonne,
si quis clandestinum contrahat Matrimonium, et postea coram
Testibus Mulierem aliam ipse affidaverit, cum eadem consum-
mare Matrimonium arctabitur in Foro contentioso, et postea in
penitentiali Foro judicabitur ipse concumbere cum prima, si,
debite requiratur, et poeitere debet quoties ex Actione propria
concubuerit cum secunda, licet in utroque Foro Judex fuerit
Homo unus et idem. Nonne in hoc Casu, ut in Job scribitur,
Perplexi sunt Testiculi Leviathan?” Proh Pudor, vere perplexi
sunt; nam cum neutra Mulierum harum, neque cum alia con-
trahens iste extunc concumbet, sine Animadversione in Foro
Contendentium et Pcenitentium. Quale Malum, Inconveniens,
aut Discrimen per Modum et Formam Processus Legis Anglize
impossibile est in Casu aliquo evenire, etiam si Leviathan
ipse ea generare nitatur. Nonne vides jam, Princeps clarissime,
Leges Anglia tanto magis clarescere, quanto eisdem Tu amplius
reluctaris ?

‘

CAP. XXXII.

Princers. Video, inquit, et eas inter totius Orbis Jura
(in Casu, quo tu jam sudasti) prefulgere considero, tamen Pro-
genitorum meorum Anglie Regum quosdam audivimus, in Le-
gibus suis minime delectatos, satagentes proinde Leges Civiles
ad Anglie Regimen inducere, et patrias Leges repudiare fuisse
conatos: horum revera Consilium vehementer admiror.

242.

CAP. ut AXLY,

~Cancetzariws. Non admirareris, Princeps, si Causam hujus -
Conaminis Mente sollicita pertractares. Audisti namque supe~
rius quomodo inter Leges Civiles precipua Sententia est, maxima -
sive Reguls, illa que sic canit Quod Principi placuit, Legis habet
vigorem ;” qualiter non sanciunt Leges Anglie, dum nedunr
Regaliter, sed et Politice Rex ejusdem dominatur in Populum
suum, quo ipse in Coronatione sua ad Legis sue observantiam
astringitur Sacramento, quod Reges quidam Anglie egre feren-
tes, putantes proinde se non libere dominari in Subditos, ut
faciunt Reges Regaliter tantum principantes, qui Lege Civili,
_et potissime preedicta Legis illius Maxima regulant Plebem suam,’.
quo ipsi ad eorum Libitum Jura mutant, nova condunt, Poenas
infligunt et Onera imponunt Subditis suis, propriis quoque
Arbitriis, Contendentium, cum velint, dirimunt Lites. Quare,
moliti sunt ipsi Progenitores Tui hoc Jugum Politicum objicere,
ut consimiliter et ipsi in subjectum Populum Regaliter tantum
dominari, sed potius debacchari queant ; non attendentes, quod
eequalis est utriusque Regis Potentia, ut in predicto T'ractatu
de Natura Legis Nature docetur, et quod non Jugum, sed
Libertas est, Politice regere Populum, Securitas quoque maxima
nedum Plebi, sed et ipsi Regi, Allevatio etiam non minima
Solicitudinis sue. Que ut Tibi apertius pateant, utriusque
Regiminis Experientiam percunctare, et Regimine tantum Regali.
qualiter Rex Francie principatur in Subditos suos, Exordium
sumito ; deinde, a Regalis et Politici Regiminis Effectu, qualiter
Rex Anglize dominatur in sibi subditos Populos, Experientiam .
queere.

CAP. XXXV.

Reminiscere, Princeps divine, qualiter Villas et Oppida
Regni Francie Frugum opulentissima, dum ibidem peregrina-
paris, conspexisti, Regis Terre illius Hominibus ad Arma, et
eorum Equis ita onusta, ut vix in eorum aliquibus quam magnis
Oppidis Tu hospitari valebas: ubi ab Incolis didicisti, Homines

243

illos, licet in Villa una per Mensem aut duos perhendinaverint,
nihil prorsus pro suis aut Equorum suorum Expensis solvisse,
aut solvere velle ; sed, quod pejus est, arctabant Incolas villarum
et Oppidorum, in que descenderant, sibi de venis, Carnibus,
et aliis, quibus indigebant, etiam carioribus Necessariis quam
ibi reperiebantur, a circumvicinis Villatis, suis propriis Sump-
tibus providere. Et si qui sic facere renuebant, concito Fustibus
csi propere hoc agere compellebantur; ac demum consumptis
in Villa una Victualibus, Focalibus, et Equorum prebendis,
ad Villam aliam Homines illi properabant, eam consimiliter
devastando, nec Denarium unum pro aliquibus Necessariis suis,
etiam aut Concubinarum suarum, quas in magna Copia secum
semper vehebant, vel pro sotularibus, Caligis, et aliis hujusmodi,
usque ad minimam earum Ligulam solverunt, sed singulas
suas qualescunque Expensas Habitatores Villarum, ubi moras
fecerunt, solvere coegerunt. Sicque et factum est in omnibus
Villis et Oppidis non muratis totius Regionis illius, ut non sit ibi
Villula una expers de Calamitate ista, que non semel aut bis in
Anno, hac nephanda pressura depiletur. Praeterea non patitur
Rex quenquam Regni sui Salem edere, quem non emat ab ipso
Rege, Pretio, ejus solum Arbitrio, assesso. Et si insulsum
Pauper quivis mavult edere, quam Salem excessivo Pretio com-
patare, mox compellitur ille, tantum de Sale Regis ad ejus
Pretium emere, quantum congruet tot Personis quot ipse in
Domo sua fovet. Insuper omnes Regni illius Incole dant, omni
Anno, Regi suo quartam Partem omnium Vinorum que sibi
accrescunt ; et omnis Caupo quartum Denarium Pretii Vinorum,
quz ipse vendit; et ultra hec, omnes Ville et Burgi solvunt
' Regi annuatim ingentes Summas super eos assessas, pro Sti-
pendiis Hominum ad Arma; sic quod Armata Regis, que, quam
magna semper est, pascatur annuatim de Stipendiis suis, per
Pauperes Villarum, Burgorum, et Civitatum Regni. Et ultra
hee; quelibet villa semper sustinet Sagittarios duos ad minus,
ét‘dlique’ plures in omni Apparatu, et Abilimentis sufficientibus
ad'serviendum Regi in Guerris suis, quoties sibi libet eos sum-
monere, quod et crebro facit; ac iis non ponderatis maxima
Tallagia alia sunt omni Anno assessa ad opus Regis, stiper
quamlibet Villam ejusdem Regni, de quibus non uno Anno ipsi
alleviantur. Hiis et nonnullis aliis Calamitatibus Plebs illa la-
cessita in miseria non minima vivit, Aquam quotidie bibit, nec
alium, nisi in solemnibus Festis, Plebeii gustant Liquorem.

Q2

244

Froccis sive Collobitis de Canabo ad modum Panni Saccorum
teguntur. Panno de Lana, praterquam de Vilissima, et hoc
solum in Tunicis suis subtus Froccas illas, non utuntur, neque
Caligis nisi ad Genua discooperto Residuo Tibiarum. Mulieres
eorum nudipedes sunt exceptis Diebus festis, Carnes non come-
dunt, Mares aut Fomine ibidem preter Lardum Baconis, quo
impinguant Pulmentaria sua in minima Quantitate. Carnes
assatas coctasve allias ipsi non gustant, preeterquam interdum de
Intestinis et Capitibus Animalium pro Nobilibus et Mercatoribus
occisorum. Sed Gentes ad Arma comedunt Alitilia sua, ita ut
vix Ova eorum ipsis relinquantur, pro summis vescenda Deliciis.
Et si quid in Opibus eis aliquando accreverit, quo locuples eorum
aliquis reputetur, concito ipse ad Regis Subsidium plus vicinis
suis ceteris oneratur, quo extunc convicinis ceteris ipse equa-
bitur paupertate. Hec, ni fallor, Forma est Status Gentis
plebane Regionis illius, Nobiles tamen non sic Exactionibus
opprimuntur. Sed si eorum aliquis calumniatus fuerit de Cri-
mine, licet per Inimicos suos, non semper coram Judice ordinario
ipse convocari solet: Sed quam sepe in Regis Camera, et alibi
in privato Loco, quandoque vero solum per Internuncios, ipse
inde alloqui visus est, et mox ut Criminosum eum Principis
Conscientia, Relatu aliorum judicaverit, in Sacco positus, absque
Figura Judicii, per Prepositi Mariscallorum ministros noctanter
in Flumine projectus submergitur, qualiter et mori audivisti
majorem multo numerum Hominum, quam qui legitimo Processu
Juris convicti extiterunt. Sed tamen, quod Principi placuit
(juxta Leges Civiles) Legis habet Vigorem. Etiam et alia
Enormia hiis similia, ac quedam hiis deteriora, dum in Francia,
et propre Regnum illud conversatus es, audisti, non alio, quam
Legis illius, Colore, detestabiliter, damnabiliterque perpetrata,
que hic inserere, nostrum nimium Dialogum protelaret: Quare,
quid Effectus Legis Politice et Regalis, quam quidam Progeni-
torum Tuorum pro Lege hac Civili commutare nisi sunt, ope-
ratus est in Regno Angliz, a modo visitemus, ut utraque Legum
Experientia doctus, que earum Tibi eligibilior sit, ex earum
Effectibus elicere valeas, cum (ut supra memoratur) dicat Phi-
losophus, quod, “{ Opposita, juxta se posita, magis appar

CAP. XXXVI.

In Regno Anglia, nullus perhendinat in alterius Domo invito
Domino, si non in Hospitiis publicis, ubi tunc pro omnibus, que
ibidem expendit, ipse plenarie solvet ante ejus abinde Recessum :
nec impune quisque Bona alterius capit sine Voluntate Propri-
etarii eorundem, neque in Regno illo prepeditur aliquis sibi de
Sale, aut quibuscunque Mercimoniis aliis ad proprium Arbi-
trium, et de quocunque Venditore, providere. Rex tamen
necessaria Domus sux, per rationabile Pretium juxta’ Consta-
bulariorum Villarum Discretiones assidendum, invitis Posses-
soribus, per Officiarios suos capere potest: sed Nihilominus
Pretium illud in Manibus, vel ad Diem per majores officiarios
Domus sue limitandum, solvere per Leges suas obnoxius est :
quia nullius subditorum suorum Bona juxta Leges illas ipse
deripere potest sine Satisfactione debita pro eisdem. Neque
Rex ibidem, per se, aut Ministros suos, Tallagia, Subsidia aut
quevis Onera alia, imponit Legiis suis, aut Leges eorum mutat,
vel novas condit, sine Concessione, vel Assensu totius Regni sui,
in Parliamento suo expresso. Quare Incola omnis Regni illius,
Fructubus quos sibi parit Terra sua, et quos gignit Pecus ejus,
Emolumentis quoque omnibus, que Industria propria vel aliena,
ipse Terra Marique lucratur, ad Libitum proprium utitur,
nullius -prepeditus Injuria vel Rapina, quin: ad minus inde
debitas consequitur Emendas; unde Inhabitantes Terram illam
Jocupletes sunt, abundantes Aure et Argento, et cunctis neces-
sariis Vite. Aquam ipsi non bibunt, nisi quod ob Devotionis
et Poenitentia Zelum aliquando ab aliis Potubus se abstinet, -
omni Genere Carnium et Piscium ipsi in Copia vescuntur, quibus
Patria illa non modice est referta, Pannis de Lanis bonis ipsi
induuntur in omnibus Operimentis suis, etiam abundant in Lec-
listerniis, et quolibet Suppellectili cui Lana congruit, in omnibus
Domibus suis, necnon opulenti ipsi sunt in omnibus Hustilimentis
Domus, necessariis Culture, et omnibus que ad quietam et
felicem vitam exiguntur, secundum Status suos. Nec in Pla-
citum ipsi ducuntur, nisi coram Judicibus ordinariis, ubi illi
per Legis Terre juste tractantur. Nec allocuti sive implacitati
sunt de Mobilibus aut Possessionibus suis, vel arrettati de Cri-
mine aliquo qualitercunque magno et enormi, nist secundum

=

246

Leges Terre illius, et coram Judicibus antedictis. Et hii sunt
Fructus, quos parit Regimen Politicum et Regale: Ex quibus
Tibi jam apparent Experientie Effectus Legis, quam So
Progenitorum Tuorum objicere conati sunt.

Superius quoque Tibi apparent Effectus Legis alterius, quam
tanto Zelo, Loco Legis istius, ipsi nisi sunt inducere, ut ex Fruc-
tibus earum Tu agnoscas eas. Et nonne Ambitio, Luxus, et
Libido, quos predicti Progenitores Tui Regni Bono preeferebant,
eos ad hoc Commercium concitabant? Considera igitur, Princeps
oplime, et jam alia que sequentur,

CAP. XXXVII.

Sanctus Thomas in Libro, quem Regi Cypri de Regemine
Principum scripsit, “Quod Rex datur propter Regnum, et non
Regnum propter Regem.” Quo, omnis Potestas regia referri
debet ad Bonum Regni sui, quod effective consistit in Defensione
ejusdem ab exterorum Incursibus, et in Tuitione Regnicolarum,
et Bonorum suorum ab Indigenarum Injuriis et Rapinis. Quare
Rex, qui hee peragere nequit, impotens est necessario judi-
candus. Sed si ipse Passionibus. propriis, aut Penuria ita
oppressus est, quod Manus suas cohibere nequit a Depilatione
Subditorum suorum, quo ipsemet eos depauperat, nec vivere
sinit et sustentari propriis Substantiis suis: quanto tune impo-
tentior ille judicandus est, quam si eos defendere ipse non suffi-
ceret erga aliorum Injurias? Revera, Rex talis nedum impotens,
sed et ipsa Impotentia, dicendus est, et non liber judicari potest,
tantis Impotentize Nexubus vinculatus. E regione, Rex liber
"et potens est, qui Incolas suos erga Exteros et Indigenas, eorum
quoque Bona et Facultates, nedum erga Vicinorum et Concivium
Rapinas defendere sufficit, sed erga propriam Oppressionem et
Rapinam, licet sibi Passiones, Necessitatesque hujusmodi relue-
tentur. Quis enim potentior, liberiorve esse potest, quam qui non
solum alios, sed et seipsum sufficit debellare? Quod potest, et
semper facit Rex Politice regens Populum suum. Quare Expe-
rientie Effectu Tibi constat, Princeps, Progenitores Tuos, qui
sie Politicum Regimen abjicere satagerunt, non solum in hoe non
potuisse nancisci Potentiam, quam optabant, videlicet ampliorem,
sed et sui Bonum, similiter et Bonum Regni sui, per hoe, ipsi
Diserimini exposuissent, et Periculo grandiori. Tamen hee,

247-

que jam de Experientia Effectu practicata Potentiam Regis
Regaliter tantum presidentis exprobrare videntur, non ex Legis
sue Defectu processerunt, sed ex Incuria, Negligentiaque taliter
principantis. Quare, ipsa Dignitatem illam potentia non minu-
unt, a Dignitate Regis Politice regulantis, quos Paris esse
Potentie, in predicto T'ractatu de Natura Legis Nature, lucu-
lenter ostendi. Sed Potentiam Regis Regaliter tantum princi-
pantis difficilioris esse Exercitii, ac minoris Securitatis sibi et
Populo suo, illa clarissime jam demonstrant, quo obtabile non
foret Regi prudenti Regimen Politicum pro tantum Regali
commutare. Unde et Sanctus Thomas supradictus optare cen-
setur, ut omnia Mundi Requa Politice regerentur.

CAP. XXXVIII.

Tonc Princeps. Parce, obsecro, Cancellarie, quod te ad
tantam a Proposito tuo Digressionem compuli Questionibus
meis ; mihi namque perutilia sunt, que hac Occasione exarasti,
licet te parumper retardaverint a Meta Intentionis Tue, ad
quam, ut tu jam celerius properes, flagito, et prime, ut aliquos
alios Casus, in quibus Legum Anglie et Civilium discrepant
Sententi#, ut promisisti et ccepisti, mihi enarres.

CAP. XXXIX.

%

Cancextarivs. Quosdam Casus alios, in quibus dissentiunt
Leges predicte, ut petis, Princeps, detegere conabor. Sed
tamen, que Legum earum prestantior sit in Judiciis suis, non
meo, sed Arbitratui Tuo relinquam.

Prolem ante Matrimonium natam, ita ut post, legitimam Lex
Givilis et succedere facit in Hereditate Parentum; sed Prolem,
- quam Matrimonium non parit, succedere non sinit Lex Anglorum,
naturalem tantum eam esse, et non legitimam proclamans.
Civilistee in Cusu hoc Legem eorum extollunt, quia Incitamentum
eam esse dicunt, quo Matrimonii Sacramento cesset Peccatum,
per quod alias duorum Anime interirent ; pressumendum quoque
esse dicunt, tales fuisse contrahentium Animos in primo eorum

248

Concubitu, quales esse demonstrat subsequens Sacramentum.
Ecclesia etiam Foetus hujusmodi habet pro legitimis. Hee,
ni fallor, tria Fulcimenta sunt majora, quibus ipsi approbant,
defenduntque Legem suam. Ad que sic respondent Legis
Angle periti: primo dicunt, quod Peccatum primi Concubitus
in Casu proposito non purgatur per subsequens Matrimonium,
licet ejus merito Delinquentium quodam modo minuatur Peena.
Dicunt etiam, quod Peccati illius conscit tanto minus inde penitent,
quo Leges Transgressoribus illis favere considerant: Quali
etiam Consideratione procliviores ipsi redduntur ad committendum
Peccatum, per quod nedum Dei, sed et Ecclesia Precepta neg-
ligunt. Unde Lex illa nedum Delinquentium participat Culpa,
sed et Legis bone Natura ipsa declinat; cum Lex sit Sanctio
sancta, jubens honesta, et prohibens contraria: qualia ipsa non
prohibet, sed potius ad inhonesta Animos labentium invitat. Nec
vallari potest Lex ista per hoc, quod Ecclesia Foetus hujusmodi
pro legitimis habet. Pia namque Mater illa in quam plurimis
dispensat, que fieri ipsa non concedit ; dispensativa enim laxavit
Apostolus Virginitatis Fraena, quod consulere noluit, cum omnes
ipse voluerit, ut se Virgines permansisse. Et absit, ut Mater
tanta a Filiis suis, in Casu isto, Pietatem suam cohiberet, dum
seepe, ipsi etiam Legis hujus Civilis Fomento concitati, incidunt
in Peccatum. Et per Matrimonium subsequens docetur Ecclesia,
Contrahentes poenitere de preterito, et de futuro per Matrimo-
nium se velle cohibere. Sed longe alium in hoc Casu Lex Anglia
Effectum operatur, dum ipsa non concitat ad Peccatum, neque
Peccantes fovet, sed terret eos, et ne peccent, minatur Penas:
Carnis etenim Illicebree Fomento non egent, egent vero Frenis,
quia Irritamenta Carnis lasciva et quasi infatigabilia sunt. Et
Homo, quum individuo perpetuari nequit, perpetuari naturaliter
appetit in Specie sua, quia omne quod vivit assimilari cupit
Cause prime, que perpetua est et eterna. Unde sit, quod
plus delectatur Homo in Sensu Tactus, quo servatur species ejus,
quam in Sensu Gustus, quo conservatur individuum. Quare
Noe, ulciscens in Filium qui ejus Pudenda revelavit, nepoti
suo Filio Delinquentis maledixit, ut inde plus cruciaretur Reus,
quam proprio possit Incommodo. Quare Lex qua vindicat in
Progeniem Delinquentis penalius prohibet Peccatum, quam que
solum Delinquentem flagellat. Ex quibus considerare’ licet,
quanto Zelo Lex Angliz illicitos prosequitur Concubitus, dum
ex eis editam Prolem ipsa nedum judicat non esse legitimam,

\

249

sed et succedere prohibet in Patrimonio Parentum. Num quid
tunc, Lex ista casta non est? et non fortius, firmiusque repellit
Peccatum, quam facit Lex preedicta Civilis, que cito, et quasi
inultum Luxurie Crimen remittit ?

CAPA.

Prarerza, Leges Civiles dicunt, “ Filium naturalem tuum
esse Filium Populi.” De quo Metricus quidam sic ait,

Cui Pater est Populus, Pater est sibt nullus et omnis:
Cui Pater est Populus, non habet ipse Patrem,

Et dum Proles talis Patrem non habuit Tempore Nativitatis
sue, quomodo ex post facto ipse Patrem nancisci poterit, Natura
non novit. Quo, si ex Fornicatoribus duobus Mulier una Filios
peperit duos, quam postea unus ex Concubinariis illis ducat
in Uxorem, quis ex Filiis hiis duobus per Matrimonium illud
legitimatur? Opinio suadere potest, sed Ratio reperire nequit,
dum ambo Filii illi Populi Foetus judicati semel Parentes ig-
norabant. Inconsonum propterea videretur, quod in Matrimonio
illo extunc ab eadem Muliere natus, cujus Generatio ignorari
non poterit, expers esset Hereditatis, et Filius nescius Geni-
toris sui succederet Patri et Matri ejus, maxime infra Regnum
Angle, ubi Filius senior solus succedit in Hereditate paterna ;
et non minus incongruum esse sentiret Arbiter equus, si Filius
ex Stupro equaliter participaret cum Filio ex legitimo Thoro
Hereditatem, que Jure Civili inter masculos dividenda est.
Nam Sanctus Augustinus, XV1. Libro de Civitate Dei, sic scribit.
Abraham omnem Censum suum dedit Isaac Filio suo, Filiis autem
Concubinarum dedit Dationes:” Ex quo videtur innui, quod
Spuriis non debetur Hereditas, sed Victus necessitas. Hee
illee Sub Nomine vero Spurii denotat Augustinus, omnem
Fetum illegitimum, qualiter et sapius facit Scriptura sacra, °
que Neminem vocat Bastardum. Ecce Differentiam non mini-
mam sentit Augustinus, sentit et Abraham inter Successionem
Spurii et Filii ex legitimo Concubitu. Czterum, omnes Filios:
illegitimos reprehendit Scriptura sacra sub Metaphora hac,
dicens, “ Spuria Vitulamina non dabunt Radices altas, nec stabile

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Fundamentum collocabunt,” Sapientie IV. Reprehendit et Ecy
clesia, quee eos a sacris repellit Ordinibus, et si cum tali dis-
pensaverit, non eum tamen permittit Dignitate preesse in
Ecclesia Dei. Congruit idcirco Legi Hominum, in Successionis
Beneficio minuere, quos Ecclesia indignos judicat sacro Ordine,
et quos ipsa repellit ab omni Prelatia: ipsos etiam, quos Scrip-
tura sacra in Natalibus minoratos judicat a legitime procreatis.
Gedeon autem, Virorum fortissimus, LXX. Filios in Matrimonio
legitur procreasse, et non nisi unum solum habuisse ex Con-
cubina; Filius tamen ipse Concubine omnes Filios illos legi-
timos nequiter peremit, excepto uno solo, Judicum IX. Quo,
in Notho uno plus Malitie fuisse deprehenditur, quam in Filiis
legitimis LXI1X. Tritum etenim Proverbium est, Sz bonus
est Bastardus, hos ei venit a Ce asu, videlicet Gratia speciali, st
autem malus ipse fuerit, hoc sibi accidit a Natura. Corruptionem
namque et maculam quandam censetur illegitimus Partus con-
trahere a Peccato Genitorum suorum sine Culpa ejus, ut maxi-
mam nos contraximus omnes a Crimine primorym Parentum,
licet non tantam: aliam tamen Nothi quam legitimi contrahunt
Maculam ex Genitura sua, eorum namque Generationem mutua
utriusque Parentis Libido culpabilis operatur, qualiter in legi-
timis, castisque Amplexibus Conjugatorum ipsa non solet de-
bacchari, mutuum sane et commune est Peccatum taliter For-
nicantium, Quo, primo similatum Peccato magis sevit in Foetum,
quam Peccatum aliter, solitarieque Peccantium, ut exinde Natus
potius Peccati Filius dici mereatur, quam Filius Peccatorum.
Quare Sapientice Liber Generationes has duas distinguens de’
Generatione legitima sic affatur, “O quam pulchra est casta
Generatio cum claritate! Immortalis est enim Memoria illius,
quoniam apud Deum nota est et apud Homines.” Altera vero
non est nota apud Homines, quo Filii ex ea nati, Filii Populi
nominantur. De Generatione utique illa altera, Liber ille dicit,
“Ea iniquis omnes Filii qui nascuntur, Testes sunt Nequitia@
adversus Parentes suos, in Interrogatione sua.” (Sapientizee eodem
IV. cap.) Interrogati etenim de Parentibus suis, eorum ipsi
revelant Peccatum, ut Filius Nve nequam: revelavit Pudenda
Patris sui. Creditur idcirco, cecum illum Natum, de quo Pha-
risei, Johannis IX. dixerunt “Tu in Peccatis natus es totus,”
fuisse Bastardum, qui nascitur totaliter ex Peccato; et dum sub-
ditur, “Et tu doces nos?” videtur eos intellexisse, Bastardum
ion ut legitimum in Naturalibus esse dispositum ad Scientiam

251

et Doctrinam. Non igitur bene dividit Lex illa, que Bastardos
a Nativitate, et legitimos parificat in Hereditate paterna, cum
eos dispares judicet Ecclesia in Hereditate Dei; similiter et
distinguat sacra Scriptura in Forma prenotata, dividatque natura
in Donis suis, signans naturales tantum nevo quasi naturali
quodam, licet latente in Animis suis. Quam igitur Legum
istarum, Anglicarum, viz. et Civilium, in Casu hoc, Tu Princeps
illustrissime, amplecteris et judicas preferendam ?

CAP, XLII.

Princes. Revera eam, que fortius a Regno Peccatum eli-
minat, et jfirmius in eo Virtutem conservat. Arbitror etiam illos
in Legis humane Beneficiis minorandos, quos Lex divina in-
digniores considerat, et quos postponit Ecclesia in Beneficiis
suis, Natura quoque procliviores judicat ad peccandum. Can-
cellarius. Recte zstimo Te sentire, quare et Casus alios memo-
rabor, in quibus discrepant he leges due. =

CAP. AEN.

Leces Civiles sanciunt, quod “ Partus semper sequitur
Ventrem.” Ut, si Mulier servilis Conditionis nubat Viro Con-
ditionis libere, Proles eorum Servus erit: Et e converso, Ser-
vus maritatus Libere, non nisi Liberos gignit. Sed Lex Anglie
nunquam Matris, sed semper Patris Conditionem imitari Partum
Jjudicat. Ut ex Libera, etiam ex Nativa, non nisi Liberum
Liber generet ; et non nisi Servum in Matrimonio procreare
potest Servus. Que, putas, Legum harum melior est in Sen-
tentiis suis? Crudelis est Lex, que Liberi Prolem sine Culpa
subdit Servituti. Nec minus crudelis censetur, que Libere
Sobolem sine Merito redigit in Servitutem. Legiste vero dicunt,
Leges Civiles prevalere in hiis Judiciis suis. Nam dicunt, quod
‘non potest Arbor mala Fructus bonos facere, neque Arbor bona
Fructus malos facere.’ Ac omnis Legis Sententia est, quod
Plantatio quelibet cedit Solo quo inseritur ; certior quoque
multo est Partus, que eum fuderunt viscera, quam quis eum

252

Pater procreavit. Ad hae Legis Anglie Consulti dicunt, qtiod
“* Partus ex legitimo Thoro non certius noscit Matrem quam Geni-
torem suum.” Nam ambe Leges, que jam contendunt, uni-
formiter dicunt, quod “ ipse est Pater, quem Nuptie demonstrant.”
Numquid tunc magis est conveniens, ut Filii Conditio ad Patris
potius quam ad Matris Conditionem referatur, cum de Con-
jugatis dixerat Adam, “ Erunt ipsi duo in Carne una ;” quod
Dominus exponens in Evangelio ait, “Jam non sunt duo, sed
una Caro.” Et cum Masculinum concipiat Foemininum, ad
masculinum quod dignius est referri debet tota Caro sic facta
una. Quare Adam et Evam vocavit Dominus, non Evam, sed
quia Caro una ipsi erant, ambos eos vocavit ipse nomine Viri,
videlicet, Adam, ut patet Genesis quinto Capitulo. Ips quoque
Civiles Leges dicunt, quod Mulieres semper coruscant Radiis
Maritorum suorum. Unde C. Qui Professione se excusant, Libro
nono, L. fi. Textus sic loquitur “ Mulieres Honore Maritorum
erigimus,” et Genere nobilitamus, et Forum ex eorum Persona
statuimus, et Domicilium mutamus. Sin autem “ Minoris Or-
dinis Virum postea sortite, priore Dignitate private, posterioris
Maritt consequantur Conditionem -et Domicilium.” Et cum
Nomen Patris, et non Matris, gerat Proles omnis, et maxime
masculina, unde tunc provenire poterit, quod Filius, Ratione
Matris, amitteret Honorem, Conditionemve Patris sui mutaret,
cujus tamen Nomen ipse retinebit, presertim dum Honore
Patris ejusdem ac Conditione resplendeat Mater ejus, et dum
Viri Honor vel Conditio nunquam per Uxoris Vitium deni-
gratur. Crudelis nempe censeretur Lex, que, sine Causa,
Filium Liberi Servituti committit; et Terram, pro qua Liber
ille, innocens a Crimine, sudavit innocentis Filii sui Titulo,
non sudanti tradet extraneo possidendam, ac Patris Nomen
etiam Filii Servitutis Nota commaculat. Crudelis etiam neces-
sario judicabitur Lex, que Servitutem augmentat, et minuit
Libertatem. Nam pro ca Natura semper implorat humana. Quia,
ab Homine, et pro Vitio, introducta est Servitus. Sed Libertas
a Deo Hominis est indita Nature. Quare ipsa ab Homine
sublata semper redire gliscit, ut facit omne quod Libertate natu-
rali privatur. Quo ipse et crudelis judicandus est, qui Liber-
tati non favet. Hee considerantia Anglie Jura in Omni Casu
Libertati dant Favorem. Et licet Jura ila judicent eum Servum,
quem Servus in Conjugio ex Libera procreavit, non per hoc
Jura illa rigida crudeliave sentiri poterunt. Nam Mulier, que

253

Conjugio Servo se subjecit, facta ei Caro una, quo ipsa, ut
dicunt Leges suprascripte, ejus consequitur Conditionem, et
proprio Arbitrio se fecit Ancillam, sed potius Servam, nullatenus
a Lege coacta, qualiter et faciunt qui se Servos reddunt in
Curiis Regum, vel in Servitutem se vendunt, nullatenus ad
hee compulsi. Quo modo tunc Liberum sancire possunt Leges
Filium illum; quem mater talis taliter est enixa? Nunquam
enim sic subjectus est Vir Uxori, licet maxima Domina ipse
Juerit, ut Subjecta est Libera hec Servo, quem ipsa facit Domi-
num ejus, dicente Domino Uxori omni, “ Eris sub Potestate
Viri, et ipse dominabitur tibi.” Et quid est, quod dicunt Legiste
illi.de Fructu Arboris bone vel male, nonne conditionis Liberze
vel Servilis est Uxor omnis, qualis est Maritus ejus? Et in
cujus Solo plantavit Maritus, dum Uxor ejus est sibi Caro una?
nonne in proprio? Quid si Surculum dulcis Nature inseverit
ipse Stipiti Arboris acerbe, dummodo Arbor illa ejus est, Nonne
Fructus (licet ex Stipite redolent) semper sint Fructus ejus ;
sic ex Muliere genita Proles Mariti est Progenies, fuerit mater
Libera vel Ancilla. Sanciunt tamen Leges Anglia, quod Domi-
nus Native a Libero in Matrimonium sumpte ipso inconsulto,
cum eam repudiare nequeat, dicente Evangelio, “ Quos Deus
conjunxit Homo non separet,” recuperabit versus Liberum illum
omne Damnum quod ipse sustinuit Ratione deperditi Servitii,
et amisse Ancille. Hec jam, ut estimo, est Summa et Forma
Legis Anglie, in Casu jam enarrato. Quid igitur jam Tibi
videtur, Princeps, in Casu isto? et que Legum predictarum
prestantior aut eligibilior a Te judicatur ?

CAP: XU.

Privceps. Anglorum Legem in hoc Casu Romanorum Legi
prestare, dubitare nos Ratio non permittit. Et optatior mihi
semper est Lex, que Favorem potius quam Rigorem Partibus
administrat. Recolo namque illius Juris Regulam que sic dicit,
“ Odia perstringt, et Favores convenit ampliari.” Cancellarius,
Et bene quidem. Alium adhuc Casum Tibi referam, Princeps,
in quo concertant Leges iste, et non multum postea tunc de-
sistam 3; ne onerosum Tibi sit tantis sollicitari Schismatibus,
etiam ne in Fastidium Tibi veniat Disceptatio mea diutius
protelata.

254

CAP. XLIV.

Leaes Civiles imo Puberum Tutelas proximis de eorum San-
guine committunt, agnati fuerint seu cognati, unicuique videlicet
secundum Gradum et Ordinem, quo in Hereditate Pupilli suc-
cessurus est. Et Ratio Legis hujus est, quia nulius tenerius
favorabiliusve Infantem alere sataget quam proximus de San-.
‘guine ejus. Tamen longe aliter de Impuberum Custodia statwunt
‘Leges Anglie. Nam ibidem, “Si Hereditas, que tenetur in
Socagio, descendat-Impuberi ab aliquo Agnatorum suorum, non
erit Impubes ille sub Custodia alicujus Agnatorum ejus, sed per
ipsos Cognatos, videlicet Consanguineos ex Parte Matris ipse
regelur.” Et si ex Parte Cognatoram Hereditas sibi deseen-
derit, Pupillus ille com Hereditate sua per proximum Agnatam,
et non cognatunr ejus custodietur, quousque ipse fuerit adultus.
Nam Leges ille di@unt, quod “committere Tutelam Infantis illi
qui est ei proxime successurus, est quasi Agnum committere Lupo
ad devorandum.” Sed si Hereditas illa, non in Socagio, sed
teneatur per Servitium militare, tunc per Leges terre illius,
Infans ipse et Hereditas ejus non per Agnatos neque Cognatos,
sed per Dominum Feodi illius custodientur, quousque ipse fuerit
etatis viginti et unius Annorum. Quis, putas, Infantem® talem,
in Actibus bellicis, quos facere, Ratione Tenure suze, ipse astrin-
gitur Domino Feodi sui, melius instruere poterit aut velit,
quam Dominus ille, cui ab eo Servitium tale debetur; Et qui
majoris Potentiz et Honoris estimatur, quam sunt alii Amici
propinqui Tenentis sui. Ipse namque, ut sibi ab eodem Tenente
melius serviatur, diligentem Curam adhibebit, et melius in his
eum erudire expertus esse censetur, quam reliqui Amici Juvenis,
rades forsan, et Armorum inexperti, maxime si nom magnum
fuerit Patrimonium ejus. Et quod utilius est Infanti, qui vitanr
et. omni sua Periculis bellicis exponet in Servitio’ Domini sui
Ratione Tenure suze, quam in Militia Actubusque bellicis' im-
bui, dum minor est, cum Actus hujusmodi ipse in ztate matura
declinare nom poterit? Et revera non minime: erit Regno at-
commodam, ut Incole ejus in Armis sint expertii Nam, ut
dicit Philosophus, “‘ Audactor quilibet facit, quod se scire ipse
non diffidet:’ Nunquid’ tune Legem hane, Tu approbas, Fit
Regis, et collaudas super Legem alteram jam descriptavit >

255

CAP. XLV.

Princers. Immo, Cancellarie, Legem hanc, plusquam alte-
ram, ego laudo. Nam in ejus Parte prima, quam Tu notasti,
caute magis, quam Civilis, ipsa providet Securitati Pupilli. Sed
tamen in ejus Parte secunda, multo magis ego delector. Nam
ab ea est, quod in Anglia, Nobilium Progenies de facili dege-
nerari non potest, sed Probitate potius, Strenuitate, et Morum
Honestate Antecessores suos ipsa transcendet, dum, in alti
nobiliorique Curia, quam in Domo Parentum, illa sit imbuta,
licet in Domo consimili forsan Parentes ejus educati erant:
Quia consimilis adhuc non erat Domus Parentum illorum Domui
Dominorum, quibus ipsi Parentes et ipsi Infantes servierunt.
Princeps quoque Regni sub hac Lege regulati, similiter et
Domini alii a Rege immediate tenentes non possunt de levi
in Lasciviam, Ruditatemve labi, cum in Pueritia, dum Orphani
fuerint ipsi, in Domo Regia nutriuntur. Quare non Infime
Domus Regiz Opulentiam, Magnitudinemque collaudo, dum in
ea Gymnasium supremum sit Nobilitatis Regni; Schola quoque
Strenuitatis, Probitatis, et Morum quibus Regnum honoratur,
et floret, ac contra irruentes securatur, etiam Formido ipsa erit
Inimicis et Amicis Regni.. Hoc revera Bonum accidisse non
potuisset Regno illi, si Nobilium Filii, Orphani, et Pupilli, per.
pauperes Amicos Parentum suorum nutrirentur. Nee Regni
Bono officere potest, licet Burgensium. Filii et aliorum libere
tenentium, qui in Socagio tenent Tenementa sua, quo ipsi ad
Militiam non astringuntur, in Domo consimilium Amicorum
suorum educantur, ut perspicue consideranti lucide apparere
potest.

CAP. XLVI.

Tune Caneellarius. Sunt et alii Casus nonnulli, in quibus
differant Leges. antedicte. Ut quia Leges Civiles judicant
Furtum manifestum, per Redditionem Quadrupli; et Furtum non
manifestum, per Dupli Recompensationem, expiari. Sed Leges
Angliz xeulrum Facinorum illorum mitius, quam Committentis
Morte puniri permittunt ; dum modo ablati Valor duodecim Dena-

256

riorum Valorem excedat. Item Libertinum ingratum Leges Civiles
in pristinam redigunt Servitutem: Sed Leges Anglie semel
manumissum semper Liberum judicant, gratum et ingratum. Alii
quoque sunt Casus hujuscemodi non pauci, quos jam Studio
Brevitatis pretereo. Et neque in hiis duobus Casibus, pre-
dictarum Legum Prestantias ego jam describo, cum non magne
_sint Indaginis eorum Qualitates. Nec diffido Ingenii Tui Soler-
tiam eas sufficienter posse rimari.

CAP. XLVI.

Princeps. Nec expedit, Cancellarie, in hiis multum sudare.
Quia licet in Anglia, Fures clandestini et manifesti passim Morte
plectantur, non cessant ipsi ibidem omnino predari, ac si Poenam
tantam illi minime formidarent. Quanto tunc minus se absti-
nerent a Crimine, si Poenam previderent mitiorem? Et absit,
a Servitute semel evasum semper deinde sub minis tremere
Servitutis, maxime Ingratitudinis Colore, cum Ingratitudinum
Species vix poterint, pre Multitudine, numerari, ef humana
Natura, in: Libertatis Causa, Favorem semper, magis quam in
Causis alis, deprecetur.

Sed jam, Cancellarie, obnixe te imploro, ut amodo amissa
plurium Casuum hujusmodi Examinatione, mihi edicas, quare
Leges Anglia, tam bone, frugi, et optabiles, ix Universitatibus
non docentur, ut Civiles similiter et Canonum Leges; et quare
in eisdem non datur Baccalareatus et Doctoratus Gradus, ut
in aliis Facultatibus et Scientiis est dari consuetum.

CAP. XLVIII.

Cancetiarius. In Universitatibus Anglie non docentur
Scientia nisi in Latina Lingua; Et Leges Terre illius in
triplici Lingua addiscuntur, viz. Aaglica, Gallica, et Latina.
Anglica, quia inter Anglos Lex illa maxime inolevit. Gallica,
“quia postquam Galli, Duce Wilhelmo Angliw Conquestore, Ter-
ram illam optinuerunt, non permiserunt ipsi eorum Advocatos
placitare Causas suas, nisi in Lingua quam ipsi noverunt, qua-

257

liter et faciunt omnes Advocati in Francia, etiam in Curia
Parliamenti ibidem. Consimiliter Gallici post eorum Adventum
in Angliam, Ratiocinia de eorum Proventibus non receperunt
nisi in proprio Idiomate, ne ipsi inde deciperentur. Venari etiam, |
et Jocos alios exercere, ut Talorum et Pilarum Ludos, non nisi
in propria Lingua delectabantur. Quo, et Anglici, ex frequenti
eorum in talibus Comitiva, Habitum talem contraxerunt, quod.
hucusque ipsi in Ludis hujusmodi, et Compotis, Linguam locuuntur
Gallicanam, et placitare in eadem Lingua soliti fuerunt, quousque
Mos ille, Vigore cujusdam Statuti, quam plurimum restrictus
est; tamen in toto, hucusque aboleri non potuit; tum, propter
Terminos quosdam, quos plus proprie Placitantes, in Gallico
_ quam in Anglico, exprimunt; tum quia Declarationes, super
Brevia Originalia, tam convenienter ad Naturam Brevium illo-
rum pronunciari nequeunt, ut in Gallica, sub quali Sermone
Declarationum hujusmodi Formule addiscuntur. Reportantur
etiam ea, que in Curiis Regiis placitantur, disputantur, et judi-
cantur, ac in Libros ad futurorum Eruditionem rediguntur,
in Sermone semper Gallico. Quam plurima etiam Statuta Regni
illius in Gallico conscribuntur. Unde accidit, quod Lingua,
jam in Francia Vulgaris, non concordat aut consimilis est Gal-
lico inter Legis peritos Anglie usitato, sed vulgariter quadam
Ruditate corrupta. Quod fieri non accidit in Sermone Gallico
infra Angliam usitato, cum sit Sermo ille ibidem seepius scriptus
quam locutus. Sub tertia vero Linguarum predictarum, viz.
sub Latina, omnia Brevia Originalia et judicilia, similiter et
omnia Recorda Placitorum in Curiis Regum, etiam et quedam
Statuta, scribuntur. Quare, dum Leges Anglize in his tribus
addiscuntur Linguis, ipse in Universitatibus, ubi solum ex-
ercetur Lingua Latina, convenienter erudiri non poterunt, aut
studeri. Leges tamen ille, in quodam Studio publico, pro
illarum Apprehensione omni Universitate convenientiore et pro-
niore, docentur et addiscuntur. Studium namque istud situm
est prope Curiam Regis, ubi Leges ille placitantur, disputantur,
et Judicia per easdem redduntur per Judices, viros graves,
Senes, in Legibus illis peritos et graduatos; quo in Curiis
illis, ad quas omni Die placitabili confluunt Studentes in Legi-
bus illis, quasi in Scholis publicis, Leges ille leguntur et docen-
‘tur. Situatur etiam Studium illud inter Locum Curiarum
allarum et Civitatem London, que de omnibus necessariis opu-
lentissima est omnium Civitatum et Oppidorum Regni illius.

R

258

Nec in Civitate illa, ubi Confluentium Turba Studentium
Quietem perturbare possit, situm est Studium istud ; > seorsim

parumper, in Civitatis illius Suburbio, et propi lis pre-
dictis, ut ad eas, sine Fatigationis Incommodo, Studentes indies
ad Libitum accedere valeant.

CAP. XLIX.

Sep ut Tibi constet, Princeps, hujus Studii Forma et
Imago, illam ut valeo, jam Jdeibam. Sunt namque in eo
decem Hospitia minora, et quandoque vero plura, que nomi-
nantur Hospititia Cancellarie. Ad quorum quodlibet pertinent
centum Studentes ad minus, et ad aliqua eorum major in multo
Numerus, licet non omnes semper in eis simul conveniant.
Sttdentes etenim isti, pro eorum parte majori, Juvenes sunt,
Originalia, et quasi Legis Elementa addiscentes, qui in illis
proficientes, ut ipsi maturescunt, ad majora Hospititia Studii
illius, que Hospitta Curie appellantur; assumuntur. Quorum
majorum quatuor sunt in Numero, et ad minimum eorum per-
tinent in Forma prenotata ducenti Studentes aut prope. In
his enim majoribus Hospitiis, nequaquam potest Studens aliquis
sustentari minoribus Expensis in Anno, quam octoginta Scuto-
rum, et si Servientem sibi ipse ibidem habuerit, ut eorum habet
Pluralitas, tanto tunc majores ipse sustinebit Expensas. Oc-
casione vero Sumptuum hujusmodi, ipsi Nobilium Filii tantum
in Hospitiis illis Leges addiscunt. Cum Pauperes et Vulgares,
pro Filiorum suorum Exhibitione, tantos Sumptus nequeant
sufferre. Et Mercatores raro cupiant tantis Oneribus annulis
attenuare Mercandisas ‘suas. Quo fit, ut vix doctus in Legibus
illis reperiatur in Regno, qui non sit Nobilis, et de Nobilium
Genere egressus. Unde magis aliis consimilis Status Hominibus,
ipsi Nobilitatem curant, et Conservationem Honoris et Fame
sue. In his revera Hospitiis majoribus, etiam et minoribus,
ultra Studium Legum, est quasi Gymnasium omnium Morum
qui Nobiles decent. Ibi cantare ipsi addiscunt, similiter et
se exercent in Omni Genere Harmonie. Ibi etiam ¢ripudiare,
ac Jocos singulos Nobilibus conveniuntes, qualiter in Domo Regia
exercere solent, enutriti. In ferialibus Diebus, eorum pars.
major Legalis Discipline Studio, et in Festivalibus sacre Scrip=

259

ture et Cronicorum Lectioni, post Divina obsequia, se confert.
Tbi quippe Disciplina Virtutum est, et Vitiorum omnium
Exilium. Ita ut propter Virtutis Acquisitionem, Vitii etiam
Fugam, Milites, Barones, alii quoque Magnates, et Nobiles
Regni, in Hospitiis illis ponunt Filios suos, quamvis non glis-
cunt eos Legum imbui Disciplina, nec ejus Exercitio vivere,
sed solum ex Patrociniis suis. Ibi vix unquam Seditio, Jurgium,
aut Murmur resonat, et tamen Delinquentes non alia Poena
quam solum a Communione Societatis suze Amotione plectuntur ;
quia Poenam hanc ipsi plus formidant, quam Criminosi alibi
Carcerem timent, aut Vincula: Nam semel ab una Societatum
illarum expulsus nunquam ab aliqua ceterarum Societatum
earunden recipitur in Socium; quo ibi Pax est continua, et
quasi Amicitia conjunctorum est eorum omnium Conversatio.
Formam vero, qua Leges ille in his discuntur Hospitiis, hic
exprimere non expedit; cum Tibi, Princeps, eam experiri non
liceat. Scito tamen, quod delectabilis ipsa est, et omni modo
expediens Legis illius Discipline, omni quoque Affectione digna.
Unum tamen Te scire desidero, quod neque Aurelianis, ubi
tam Canones addiscuntur, quam Civiles Leges, et quo a quam-
pluribus Regionibus confluunt Scholares, neque Andaginis, aut
in Cadomo, aliave Universitate Francie, preterquam solum
Parisiis, reperiuntur tot Studentes Infantiam evasi, sicut in
hoc Studio; licet ibi Addiscentes omnes solum ab Anglia sint
oriundi.

CAP. 17

Sep cum Tu, Princeps, scire desideres, cur in Legibus
Anglize non datur Baccalareatus et Doctoratus Gradus, sicut
in utroque Jure in Universitatibus est dare consuetum ; scire
Te volo, quod licet Gradus hujusmodi in Legibus Anglie
minime conferantur, datur tamen in illis, redum Gradus, sed
et Status quidam, Gradu Doctoratus non minus celebris aut so-
lemnis, qui Gradus Servientis ad Legem appellatur. Et con-
fertur sub hac, que subsequitur, Forma. Capitalis Justiciarius
de Communi Banco, de Consilio et Assensu omnium Justi-
ciariorum eligere solet, quoties sibi videtur opportunum, VII.
vel VIII. de maturioribus Personis, qui in predicto generali

Rez

260

Studio magis in Legibus profecerunt, et qui eisdem Justiciartis
optime Dispositionis esse videntur, et nomina eorum ille.
deliberare solet Cancellario Anglie in Scriptis, qui-illico man-
dabit per Brevia Regis cuilibet Electorum illorum, quod sit
coram Rege ad Diem per ipsum assignatum ; ad suscipiendum
Statum et Gradum Servientis ad Legem sub ingenti Poena, in
quolibet Brevium preedictorum limitata; ad quem Diem qui-
libet eorum comparens jurabitur (super sancta Dei Evan-
gelia) fore paratum ad Diem et Locum tunc sibi ‘statuendos,
ad recipiendum Statum et Gradum predictum, et quod ipse
in Die illo dabit Aurum, secundum Consuetudinem Regni in
hoc Casu usitatam. amen, qualiter ad Diem illam, quilibet
electorum predictorum se habebit, nec non Formam et modum,
qualiter Status et Gradus hujusmodi conferentur et recipientur,
hic inserere omitto, cum Scripturam majorem illa exigant, quam
congruit Operi tam succincto. Tibi tamen, Ore tenus, ea alias
explicavi. Scire tamen Te cupio, quod adveniente Die sic
Statuto, electi illi, inter alias Solemnitates, Festum celebrant,
et Convivium ad instar Coronationis Regis, quod et continuabitur
per Dies septem ; nec quisquam Electorum illorum Sumptus,
sibi contingentes circa Solemnitatem Creationis sue, minoribus
Expensis perficiet, quam mille et sexcentorum Scutorum ; quo,
Expense, quas octo sic electi tunc refundent, excedunt Summam
3200 Marcarum expensarum; Pars quedam, inter cetera, hec
erit: Quilibet eorum dabit Annulos de Auro, ad Valenciam in
toto 40 Librarum (ad minus) Monete Anglicane. Et bene
recolit Cancellarius ipse, quod cum ille Statum et Gradum
hujusmodi receperat, ipse solvit pro Annulis, quos tune dis-
tribuit, 50 Libras, que sunt 300 Scuta. Solet namque unus-
quisque Servientium hujusmodi, Tempore Creationis sux, dare
cuilibet Principi, Duci, et Archiepiscopo, in Solemnitate illa pre-
senti, ac Cancellario, et Thesaurario Anglie, Annulum ad Valo-
rem 26s. 8d. Et cuilibet Comiti et Episcopo consimiliter pre-
sentibus, nec non Custodi privati Sigilli, utrique Capital
Justiciario, et Capital Baroni de Scaccario Regis Annulum ad
Valorem 20s. Et omni Domino Baroni Parliamenti, et omni
Abbati et notabili Pralato, ac magno Militi tune presenti,
‘ Custodi etiam Rotulorum Cancellarie Regis, et cuilibet Jus-
liciariorum, Annulum ad Valenciam 1 Marce. Similiter et
omni Baroni de Scaccario Regis, Camerariis, etiam omnibus
Offictariis et notabilibus viris in Curtis Regis ministrantibus,

CS aeOk

Annulos minoris Pretii, convenientes tamen Statibus eorum
quibus donantur. Ita quod, non erit clericus, maxime in Curia
Communis Banci, licet infimus, quin Annulum ipse recipiet
convenientem Gradui suo. Et ultra hos ipsi dant Annulos aliis
Amicis suis. Similiter et Libratam magnam Panni unius Secte,
quam ipsi tunc distribuent in Magna Abundantia, nedum Fami-
liaribus suis, sed et Amicis aliis et notis, qui eis attendent et
ministrabunt Tempore Solemnitatis predicte. Quare, licet in
Universitatibus in Gradum Doctoratus erecti Expensas non
modicas faciant Tempore Creationis sue, ac Birreta, alia quoque
Donaria quam Bona erogent ; non tamen Aurum ipsi conferunt,
aut alia Donaria, sumptusve faciunt, his Expensis similia. Neque
in Regno aliquo Orbis Terrarum datur Gradus specialis in
Legibus Regni illius, preeterquam solum in Regno Anglia. Nec
est Advocatus in Universo Mundo, qui Ratione Officii sui tan-
tum lucratur, ut Serviens hujusmodi. Nullus etiam, licet in
Legibus Regni illius scientissimus fuerit, assumetur ad Officium
et Dignitatem Justiciarit in Curtis Placitorum coram ipso Rege,
et communis Banci, que sunt supreme Curie ejusdem Regni
ordinarie, nisi ipse primitus Statu et Gradu Servientis ad Legem
fuerit insignitus. Nec quisquam, et preterquam Serviens talis,
in Curia communis Banci, ubi omnia realia Placita placitantur,
placitabit. Quare ad Statum et Gradum talem, nullus hucusque >
assumptus est, qui non in predicto generali Legis Studio
seadecem Annos ad minus antea complevit, et in Signum quod
omnes Justiciarii illi taliter extant Graduati, quilibet eorum
semper utitur, dum in Curia Regis sedet, Bzrreto albo de serico,
quod primum et precipuum est de Insignibus Habitus, quo
Servientes ad Legem, in eorum Creatione, decorantur. Nec
Birretum illud Justiciarius, sicut nec Serviens ad Legem unquam
deponet, quo Caput suum in toto discooperiet, etiam in Pre-
sentia Regis, licet cum Celsitudine sua ipse loquatur. Quare,
Princeps preclarissime, Tu a modo hesitare non poteris, quin™
Leges iste, que tam singulariter supra Civiles Leges, Leges
etiam omnium alioram Regnorum honorantur, et tam solemni
Statu eruditorum et ministrantium in eis venerantur, pretiose
sint, Nobiles, et sublimes, ac magne Prestantie, maximeque
Scientia et Virtutis.

262

CAP. LI.

Sep ut Justiciariorum (sicut et Serventiem ad Legem) Status
Tibi innotescat, eorum Formam, Officiumque (ut potero) jam
describam. Solent namque in communi Banco quinque Justiciarn
esse, vel sex ad majus. Et in Banco Regis, quatuor vel quinque,
ac quoties eorum aliquis, per Mortem vel aliter cessaverit, Rex
de Advisamento Concilii sui eligere solet unum de Servientibus
ad Legem, et eum per Literas suas Patentes constituere in Jus-
ticitarium, loco Judicis sic cessantis; et tunc Cancellarius Angliz
adibit Curiam, ubi Justiciarius sie deest, deferens secum Literas
illas, ac sedens in Medio Justiciariorum, introduci facit Servientem
sic electum ; cui in plena Curia ipse notificabit Voluntatem Regis,
de officio Judiciario sic vacante, et legi faciet in publico Literas
predictas: Quo facto, Custos Rotulorum Cancellarie Regis leget
coram eodem Electo Jusjurandum quod ipse facturus est, quod
et cum supra Sancta Dei Evangelia ipse juraverit, Cancellarius
sibi tradet Literas Regis preedictas et Capitalis Justiciarius Curie
ilius assignabit sibi Locum in eadem, ubi deinceps ille sedebit,
et mox eum sedere faciet in eodem. Sciendum tamen 7%bi est,
Princeps, quod Justiciarius iste inter cetera tunc jurabit, es
Justitiam ministraturum indifferenter omnibus Hominibus coram
eo placitantibus, Inimicis et Amicis, nec sic facere differet,
etiamsi Rex per Literas suas, aut Ore tenus, contrarium jusserit.
Jurabit etiam, quod ex tunc non recipiet ipse ab aliquo, pre-
terquam a Rege Fedum, aut Pensionem aliquam, seu Liberatam,
neque Donum capiet ab habente Placitum coram eo, preeterquam
Esculenta et Poculenta, que non magni erunt Pretii. Sciendum
etiam Tibi est, quod Justiciarius sic creatus, Convivium, Solem-
nitatemve, aut Sumptus aliquos non faciet Tempore Susceptionis
Officii et Dignitatis sue; cum non sint illa Gradus aliqui in
Facultate Legis, sed Officium suum illa sint et Magistratus, ad
Regis nutum duratura, Habitum tamen Indumenti sui (in qui-
busdam) ipse extunc mutabit, sed non in omnibus Insigniis ejus.
Nam Serviens ad Legem ipse existens, Roba longa, ad instar
Sacerdotis, cum Capicio penulato circa Humeros ejus, et desuper
Collobio, cum duobus Labelulis, qualiter uti solent Doctores
Legum in Universitatibus quibusdam, cum supra descripto
Birreto vestiebatur. Sed Justiciarius factus, loco Collobii, Cla-

* =

263

mide induetur, jfirmata super Humerum ejus dexterum, ceteris
Ornamentis Servientis adhuc permanentibus, excepto quod stra-
gulata veste, aut Coloris bipertiti, ut potest Serviens Justiciarius
non utetur, et Capicium ejus non alio quam Menevero penulatur,
Capicium tamen Servientis Pellibus agninis semper albis impli-
catur. Qualem: Habitum Te plus ornare optarem, cum Potestas
Tibi fuerit, ad Decorem Status Legis, et Honorem Regni tui.
Scire Te etiam cupio, quod Justiciarii Anglie non sedent in
Curiis Regis, nisi per tres Horas in Die, scilicet, ab Hora VIII.
ante Meridiem usque Horam XI. completam; quia post Meridiem
Curie illee non tenentur. Sed Placitantes tunc se devertunt ad
Pervisum, et alibi consulentes cum Servientibus ad Legem, et
aliis Consilariis suis. Quare Justiciarii, postquam se refecerint,
totum Diei residuum pertranseunt studendo in Legibus, sacram
legendo Scripturam, et aliter ad eorum Libitum contemplando,
ut Vita ipsorum plus contemplativa videatur quam activa.
Sicque quietam illi Vitam agunt ab omni Sollicitudine et Mundi
Turbinibus semotam. Nec unquam compertum est, eorum ali-
quem Donis aut Muneribus fuisse corruptum. Unde et hoc
Genus Gratiz vidimus subsecutum, quod vix eorum aliquis sine
Exitu decedat, quod justis magne et quasi appropriate Bene-
dictionis Dei est. Mihi quoque non minimi Muneris Divini
censetur esse pensandum, quod ex Judicum Sobole, plures de
Proceribus et Magnatibus Regni hucusque prodierunt, quam de
aliquo alio Statu Hominum Regni, qui se Prudentia et Industria
propria opulentos, inclytos, nobilesque fecerunt. Quanquam Mer
catorum Status, quorum aliqui sunt, qui omnibus Justiciariis
Regni prestant Divitiis, Judicum Numerum in Milibus Hominum
excedat. Nam Fortune, que nihil est, istud ascribi non poterit,
sed Divine solum Benedictioni fore, arbitror, tribuendum. Cum
ipse per Prophetam dicit, ‘Quod Generatio Rectorum benedi-
cetur.” Et alibi de Justis loquens Propheta, ait, “Quod Filit
eorum in’ Benedictione erunt.” Dilige igitur, Fili Regis, Justi~
tiam que sic ditat, colit, et perpetuat Foetus Colentium eam.
Et Celator esto Legis, que Justitiam parit, ut a Te dicatur,
quod a Justis scribitur. “ Et Semen eorum in eternum ma-
nebit.”

264

CAP. LIL.

Princers. Unum jam solum superest, Cancellarie, decla~
randum, quo parumper adhuc fluctuat, inquietatur quoque
Mens mea; in quo si eam solidaveris, non amplius Te Que-
stionibus fatigabo. Dilationes ingentes, ut asseritur, patiuntur
Leges Anglize in Processibus suis, plus quam Leges aliarum
Nationum; quod Petentibus, nedum Juris sui Prolatio est,
sed et Sumptuum quandoque importabile Onus, et maxime in
Actionibus illis, in quibus Damna Petentibus non redduntur.

CAP. LIII:

Cancettartus. In Actionibus personalibus extra Urbes et
Villas Mercatorias, ubi proceditur secundum Consuetudines et
Libertates earundem, Processus sunt Ordinarii, et quantaslibet
Dilationes patiuntur, non tamen excessivas. In Urbibus vero,
et Villis illis, -potissimum cum urgens Causa deposcat, celeris,
ut in aliis Mundi Partibus, fit Processus; nec tamen (ut alibi)
ipsi nimium aliquando festinantur, quo subsequitur Partis Lesio.
Rursus in realibus Actionibus, in omnibus fere Mundi Partibus,
morosi sunt Processus, sed in Anglia quodammodo celeriores.
Sunt quippe in Regno Francie, in Curia ibidem summa, que
Curia Parliaments vocitatur, Processus quidam, qui in ea plus
quam triginta Annis pependerunt. Et novi Ego Appellationis
Causam unam, que in Curia illa agitata fuit, jam per decem
Annos suspensam fuisse, et adhuc verisimile non est, eam infra
Annos X. alios posse decidi. Ostendit et mihi dudum, dum
Parisiis morabar, Hospes meus Processum suum in Scriptis,
quem in Curia Parliamenti ibidem ipse tune VIII. Annos,
pro IV. s. Reditus, qui de Pecunia nostra VIII. d. non exce-
dunt, prosecutus est, nec speravit se in VIII. Annis aliis
Judicium inde obtenturum. Alios quoque nonnullos novi Casus
ibidem, his similes. Sicque Leges Angliw, non tantas, ut mihi
visum est, Dilationes sortiuntur, ut faciunt Leges Regionis illius,
Sed revera, pernecessarium est, Dilationes fieri in Processibus
omnium Actionum, dummodo nimium ipse non fuerint excessive-

265

Nam sub illis Partes, et maxime Pars rea, quam sepe sibi pro-
vident de Defensionibus utilibus, similiter et Consiliis, quibus
alias ipsi carerent. Nec unquam in Judiciis tantum imminet
Periculum, quantum parit ‘Processus festinatus. Vidi nempe
quondam apud Civitatem Sarum, coram Judice quodam, ad
Gaolam ibidem deliberandam cum Clerico suo assignato, Muli-
erem de Morte Mariti sui infra Annum, de Interfectione ejus,
aitinctam, similiter et combustam. In quo Casu licuit Judici illi,
usque post Annum illum, Arretamentum sive Disrationem
Mulieris illius respectuasse. Et post Annum illum vidi unum
de Servientibus interfecti illius, coram eodem Justiciario, de
Morte ejusdem Magistri sui convictum ; qui tunc publice fate.
batur ipsummet solum Magistrum suum occidisse, et magistram
suam, Uxorem ejus, tunc combustam, innocentem omnino fuisse
de Morte ejus ; quare ipse tractus et suspensus fuit. Sed tamen
omnino, etiam in ipso Mortis Articulo, Mulierem combustam,
immunem a Crimine illo fuisse, ipse lugebat. O quale putandum
est, ex hoc Facto, Conscientia Discrimen et Remorsum evenisse
Justiciario illi* tam precipiti, qui potuit Processum illum juste
retardasse? Sapius proh Dolor, ipse mihi fassus est, quod
nunquam in Vita sua Animum ejus de hoc Facto ipse purgaret-
Crebro enim in Deliberationibus, Judicia maturescunt; sed in
accelerato Processu, nunquam. Quare, Leges Anglie Essonium
admittunt, qualia non faciunt Leges alie Mundi universi. Nonne
quam utiles sunt Vocationes ad Warrantum? Auzilia de his,
ad quos spectat Reversio Tenementorum, qui in Placitum dedu-
cunt, et qui habent Evidentias eorundem. Auzilia etiam de
Coperticipibus, qui reddent pro Rata si Tenementum Comparticipi
allottatum evincatur: Et tamen hec Dilationes sunt, sicut Tu,
Princeps, alias nosti ex Doctrina mea. Et Dilationes his similes
Leges alie non admittunt, neque Leges Anglie frivolas et
infructuosas permittunt Inducias. Et si que in Regno illo Dila-
tiones in Placitis, minus accommode, fuerint usitate, in omni
Parliamento amputari ille possunt, etiam et omnes Leges alia,
in Regno illo usitate, cum in aliquo claudicaverint, in omni
Parliamento poterunt reformari. Quo recte concludi potest, quod
omnes Legis Regni illius optime sunt, in Actu vel Potentia ; quo
faciliter in Actum duci poterunt, et in Essentiam realem. Ad
quod faciendum, quoties Aquitas id poposcerit, singuli Reges
ibidem Sacramento astringuntur solemniter prestito Tempore
Receptionis Diadematis sui.

266

CAP. LIV.

Princeps. Leges illas, nedum bonas, sed optimas esse,
Cancellarie, ex Prosecutione tua in hoc Dialogo certissime de-
prehendi. Et si que ex eis meliorari deposcant, id certissime
fieri posse, Parliamentorum ibidem Formule nos erudiunt. Quo,
realiter, potentialiterve, Regnum illud semper prestantissimis
Legibus gubernatur, nec tuas in hac Concionatione Doctrinas
futuris Anglie Legibus inutiles fore conjicio, dum non delectet
regere Legibus, que non delectant. Fastidit namque Artificem
Ineptio Instrumenti, et Militem ignavum reddit Debilitas Lancie
et Mucronis. Sed sicut ad Pugnam animatur Miles, cum nedum
sibi prona sint Arma, sed et magis cum in Actibus bellicis ipse
sit expertus, dicente Vegetio de re militari, quod Scientia Ret
bellicee dimicandi Audaciam nutrit. (Quia nemo facere metuit —
quod se bene didicisse confidit.) Sic et Rex omnis ad Justitiam
animatur, dum Leges, quibus ipsa fiet, nedum justissimas esse
agnoscit, sed et earum ille expertus sit Formam et Naturam,
quas tantum in Universali, inclusive et in confuso, Principi scire
sufficiet, remanente suis Judicibus earum discreta, determina-
taque Peritia et Scientia altiori. Sic equidem et Scripturarum
divinarum Peritiam, ut dicit Vincentius Beluacensis in Libro de
Morali Institutione Principum, Omnis Princeps habere deberet ;
cum dicat Scriptura superius memorato, quod “ Vani sunt omnes,
in quibus non est Scientia Dei.” Et Proverbiorum XVI. scribatur,
«« Divinatio (id est, divina Sententia, vel Sermo divinus) sit in
Labiis Regis ;” et tunc, “ In Judicia non errabit Os ejus.” Non
tamen profunde, determinateve intelligere tenetur Princeps Scrip-
turas sacras, ut decet sacre Theologie Professorem: Sufficit
namque ei earum in confuso degustare Sententias, qualiter et
Peritiam Legis sue. Sic et fecerunt Carolus Magnus Ludovicus
Filius ejus, et Robertus quondam Rex Francie, qui hance scripsit
Sequentiam (Sancti Spiritus adfit nobis Gratia ;) et quam plures
alii, ut in XV. Capite Libri predicti, Vincentius preedictus lucu-
lenter docet. Unde et Doctores Legum dicunt, quod ‘ Jmpe-
rator gerit omnia Jura sua in Scrinio Pectoris sui:” non, quia
omnia Jura ipse noscit realiter et in Actu, sed dum Principia
eorum ipse percipit, Formam similiter et Naturam, omnia Jura
sua ipse intelligere censetur, que etiam transformare ille potest,

”

267

mutare et cassare; quo in eo potentialiter sunt omnia Jura sua,
ut in Adam erat Eva, antequam plasmaretur. Sed quia, Can-
cellarie, ad Legum Anglie Disciplinatum mihi jam conspicio
sufficienter esse suasum, quod et in hujus Operis Exordio
facere promisisti; non te amplius hujus Pretextu sollicitare
conabor; sed obnixe deposco, ut in Legis hujus Principiis, ut
quondam incepisti, me erudias, docens quodam modo ejus agnos-
cere Formam et Naturam, quia Lex ista mihi semper peculiaris
erit inter ceteras Leges Orbis, inter quas ipsam lucere conspicio,
ut Lucifer inter Stellas. Et dum Intentioni tue, que ad Col-
lationem hanc concitatus es, jam satisfactum esse non ambigo,
Tempus postulat et Ratio, ut Nostris Colloquiis Terminum con-
feramus: reddentes ex eis Laudes Ei et Gratias, qui ea incepit,
prosecutus est, et finivit, Alpha et Omega quem dicimus: quem
et laudet omnis Spiritus. AMEN.

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APPENDIX.
No. I.

In the Pepysian Library belonging to Magdalene College,
Cambridge, is a very curious MS. containing notes which were
taken of the transactions in the House of Lords at the period
of the Revolution by a peer of the Tory party. It is. there
related that Lord Nottingham had prepared a statement of
reasons for the Protest which is entered to the Vote for agreeing
with the Commons that the throne was vacant. The party,.
however, considering that more persons would probably be
prevailed upon to sign the Protest if the grounds of it were
not expressed, nothing more was entered in the Journals than
the names of the dissentients. Lord Nottingham’s reasons, in”
his own hand-writing, were copied by the author of the manu-
script, and are as follows:

1. Because though the King can resign his crown by consent
of Parliament, yet neither the Parliament nor the whole people
of England have authority to depose him without his own
consent; the King being supreme, and therefore there’ can
be no superior to him.

2. Or if the Parliament could depose him, yet the monarchy
of England is hereditary by the fundamental constitution of
this government, and has been often declared by Parliament
to be so.

3. No act of the King alone can abrogate the right of his
heirs without Act of Parliament, and therefore the throne
cannot be now vacant.

4. The consequence of this vote is that the monarchy is
elective ; which is contrary to the original constitution’ of the
government, and destructive of it, and the peace and welfare
of the nation.

270

The same MS. contains the following Speeches of Lord
Delamere and Lord Montague.

Lord Delamere.—I have long thought myself absolved from
my allegiance to King James. I am satisfied that I owe him
none, and I resolve never to pay him any. And if King
James comes again I will fight against him and will die single
with my sword in my hand, rather than pay him any obedience.

Lord Montague.—I am so perfectly satisfied of the throne’s
being vacant, that I have a dispensation within myself with-
out the help of one from my Lord Jeffreyes or Sir W. Herbert,
and therefore I do declare that from this day I look upon
myself to be absolved from all allegiance to King James.

See further on the subject of the above Protest, Burnet’s History —
of his own times, last Edition, Vol. III, p. 376, Note “ u.”

271

No. II.

The following Extracts from Fortescue’s Treatise on
Absolute and Limited Monarchy, are offered for the
purpose of shewing how far his sentiments respecting
the liberty of the subject, which he expressed during his
exile, and whilst he held the office of Chancellor to
Henry VI, are consistent with the writings which he
subsequently composed for the instruction of Edward IV,
after his reconciliation to that Prince. Thus the reader
will have placed before him some opinions respecting the
Freedom of the People of England, which were delivered
in the reign of a Sovereign, as well of the York as of
the Lancastrian family. These Extracts will also con-
Jirm a belief which cannot fail to arise from a perusal
of the tract ‘‘ De Laudibus,” that the English in early
times enjoyed more liberty than the inhabitants of France
and other Continental Nations, and that they were
themselves sensible of their superior privileges.—The
specimen of the language of this Country as written
in the reign of Edward IV, may likewise be thought
a matter of curiosity. (For an enquiry respecting
the date of the Treatise on Monarchy, see Biog. Bnit.
_ Art. Fortescue.)

CHAP. XI;

Hereafter ys schenyd, what Harme would come to Englond, i if
the Commons thereof were Pore.

Some Men have said, that it war good for the Kyng, that
the Comons of Englond wer made poer, as be the Comons of
Fraunce. For than, thay would not rebell as now thay done

2%2

often tymes; which the Comons of Fraunce do not, nor may
do; for they have no Wepon, nor Armor, nor Good to bye
it withall. To thees maner of Men, may be said with the
Philosopher, Ad parva respicientes, de facili enunciant ; that
is to say, thay that seen fewe thyngs, woll sone say their
Advyse. Forsothe thoos folkys consyderyn litil the Good of
the Realme of Englond, wherof the Might most stondyth upon
Archers, which be no rich Men. And if thay were made
porer than they be, they schuld not have wherewith to bye
them Bowys, Arrowes, Jakkes, or any other Armor of Defence,
whereby thay might be able to resyste our Ennymyes, whan
thay liste to come upon us, which thay may do on every
syde, consydering that we be an Ileland; and as it ys said
before, we may not have sone Socors off any other Realme.
Wherfor we schuld be a Pray to al other Ennymyes, but if we
be mighty of our self, which Might stondith most upon our
poer Archers ; and therfor thay nedyn, not only to have such
Abilyments as now is spoken of, but also thay nedyn to be
mich exercysyd in schotyng, which may not be done with-
out right grete Expensys; as every Man experte theryn
knowyth right well. Wherfor the makyng poer of the
Comons, which is the’ makyng poer of our Archers, schuld
be the Distruction of the grettest Might of our Realme.
* * * * * * * * * * * *
Item, It is the Kyngs Honor, and also his Office, té make his
Realme riche ; and yt ys Dishonor whan he hath a poer Realme,
of which Men woll say, that he reygnyth upon Beggars; yet
it war mych gretter Dyshonour, if he fownd his Realme riche,
and than made it poer. And also as it were gretely ayenste his
Consyence, that amght to defend them, and their Goods, if
he toke from them their goods, without lamfull Cause; from
the Infamye whereof God defend our Kyng, and gyve him
Grace to augment his Realme in Rycesse, Welth, and Pro-
speryte, to his perpetual Lawde and Honour. Item, The
Realme of Fraunce gevyth never frely of their own good Will,
any Subsydye to their Prynce, because the Comons therof be
so poer, as thay may not gyve any thyng of their own Goods.
And the Kyng ther, askyth never Subsydye of his Nobles, for

drede that if he chargyd them so, thay would confedre with
the Comons, and peraventure putt hym downe; But our
Comons be riche, and therfor thay gave to their Kyng, at
sum tymys Quinsimes and Dismes, and often tymys other
grete Subsydyes, as he hath nede of their Goods for the
Defence of his Realme. How grete a Subsydye was it, whan
this Realme gave to their Kyng, a Quinsime and Disme Quin-
quinall, and the ix® Flees of their Wolls, and the ix“ Scheff of
their Graynys, for the Terme of five Yers. This might: thay
not have done, if thay had ben empoveryshyd by their Kyng,
as the Comons of Fraunce; nor such a Graunte hath byn
made by any Realme of Cristyndome, of which any Cronycle
makyth mention. Nor non other Realme may, or hath Cause
to do so. For thay have not so mich Fredome in their omn
‘Goods, nor be entreatyd by so favourable Lawys as we be,
except a fewe Regyons before specyfyed. Item, Wee see dayly,
hou Men that have lost their Goods, and be fallyn into Povertie,
becomyn anon Robbers and Thefes, which would not have
be such, yf Povertie had not brought them thereto. How
many a Thefe than wer like to be in this Land, if al the
Comons were poer. The grettest Sewertie truly, and also the
most Honour that may come to the Kyng is, that his Realme be
riche in every Astate ; for nothyng may make his People to arise,
but lacke of Goods, or lacke of Justyce. But yet certeynly whan
thay lack Goods thay will arise, sayyng thay lack Justyce.
Nevertheless if thay be not poer, thay will never aryse, but if
their Prince so leve Justice, that he gyve himself al to Tyrannye.”

CITA. x.

Hou that the Crown may be best endowed.
® * % * * * * * * * * *
Wuenrerore ther is no parte of thoos maner of Subsydeys
that might be good for owr Soveryng Lord, but if it war,
that he might sell to his Subgetts the Salte that comyth hether.
S

274

Yn which thyng he schall have more Grutch of the People,
than Profyte. For in Fraunce, the People salten but litill meate,
except their Bacon, and therfor they would bye lity] Salt; but
yet they be artyd to bye more Salte than they would. For the
Kyngs Officers bryng to their Housys every yere, as moch.
Salte as by their Conjecture ys reasonable, to the nomber of
Men, Women, and Children that dwellyn theryn, for which
they schal’ pay though they wold not have so myche. This
Rule and Order wold be sore abhorred in Englond, as well by
the Merchaunts that be wontyd to have their Freedome in
byyng and sellyng’ of Salte, as by the People that usen mich
to salte their Meats more than do the French Men; by occasyon
wherof thay wol than at every Meale grutche with the Kyng,.
that entreatith them more rigorously than his Progenitours Have
done. And so his Highness schal have therof, but as had the
Man that scheryd his Hogge, moche Crye and no Wull. In
Flanders and other Lordscippis of the Duke of Burgoyne down-
ward, he taketh certeyn Imposicions made by hymself upon
every Oxe, every Schepe, and upon other thyngs sould, and
also upon every Vessel of Wyne, every Barell of Beer, and
other Vytayls sould in his Lordschip, which is no litill Revenue
to hym yerely: but yet he doth it magre the People, which God
defend that the Kyng our Soveryng Lord schuld do upn his People,
without’ their Graunts and Assents. Nevertheless with their
Assents, such maner of Subsydye, if ther could not be found
a better Meane of the encreasing of the Kyngs Revenuz, were
not unreasonable. For theryn, and yn the Gable of Salt, every:
Man schal bere the charge therin equally. But yet I would
not, that such a new Custome and Charge were put upon the
People, in our Soveryng Lords dayes, with which his Pro-
genitors chargyd them never, if a better and more convenient
way could be found.

mM

INDEX

THE PRINCIPAL MATTERS TREATED OF
IN THIS WORK.

—<———

Axsotute Government, page 26, 141.

Admiralty, jurisdiction and procedure of the Court, 114, 114n.
Apprentices ad legem and ad barras, 192 n.

Aristotle, authority of in English Law, 5 n.

Attainder, bills of, 118 n.

Attaint of Jurors, 90, 98 n.

Bastardy, early opinions in England respecting, 148, 152, 152 n.
Boroughs, 80, 80 n.
Brute the Trojan, account of, 39, 39 n.

Challenges of Jurors, 85, 87 n. 106.
Chivalry, Court of, 115, 115 n.
Guardianship in, 163 n. 167, 167 n.
Cities, 80, 80 n.
Civil Law, Progress and Authority of in England, 5 n. 53 n.
123, 123 n.
indebted to the Schools of Philosophy, 9 n.
Guardianship, 162, 163 n.
Legitimation, 145, 152 n.
Theft, 172, 173 n.
Slavery, 155, 158 n.
Ingratitude, 172. ¢
Trial, 67, 76, 76 n. 101 n.

276 INDEX.

Constitution English, History of, 39, 42 n.
Principles of, 42 n.
Coronation, the Ceremony and Oath, 126.
Courts of Justice, secret and illegal, 138, 139 n.
Counties, Division of, 78, 78 n.

Quillets of, 78 n.

Danish Laws, 53 n.

Delays in Law, 201, 202, 204 n.

Descent, ancient rule of with respect to the half-blood, 15, 15 n.
Dispensing Power, 31 n.

Divine Right, History of the Opinions concerning, 45 n.
Divinity, Study of by English Lawyers, 5 n. 85.

Duel, Trial by, 64 n.

Education, Military in England, 167, 167 n.
of Princes, 18, 18 n. 22, 23.
England, its commendation and commodities, 102, 102 n. 103 n.
137 1. "
comparative state of Liberty with other countries,
125, 129, 182 n. 134.
English, Manners of in former times, 137, 137 n.
——_———-Language, progress of, 179 n.
Escuage, 169 n.
Esquire, 104, 106 n.
Essoins, 203, 204 n.

Fortescue, extracts from his Treatise on Absolute and Limited
Monarchy, 271.

France, Government of, and condition of the inhabitants in,
129, 132 n.

Frankleyne, 104, 108 n.

French, use of the French Language in England, 177, 179 n.

Fringe, his Case, 69.

Government, origin and formation of, 35, 37, 38n. 41, 42 n.
Guardianship, law of, 162, 163 n.

INDEX. 277

Hamlets, division of, 80, 8 n.
Henry VI. Insecurity of property in the time of, 134 n.
Hundreds, 79, 79 n. 86.

Impeachments, law of, 118 n.

Impositions, various forms of without the consent of Parlia-
ment, 29 n.

Inns and Innkeepers, law respecting in the time of Henry VI.
134, 134 n.

Inns of Court, History of, 182, 184 n.

Studies in, 182, 184 n.

their Masques and Revels, 184, 185 n.

Judges, Antiquities respecting, 184.

Oath of, 194.

Character of, 196, 198.

Jurors, Immunity of, 99 n.

Jury, Trial by, 63, 63 n. 85, 87 n. 89, 92, 93 n. 100, 109 n.
Antiquity of, 63 n.

King of England, his power, and its limits, 26, 28 n. 136, 136 n.
Revenue of, 136 n.

Interference of, with the Administration of
Justice, 22, 23 n.

Coronation Oath of, 126, 126 n.

Knights, 104, 106 n.

Knights’ Service, 169 n.

Latin, use of in ancient records, and legal proceedings, 180 n.
Law, Definitions of, 8, 8 n.

of God, 48 n. 111, 112 n. 113.

—— of Nature, 48, 48 n.

—— of Merchants, 116, 116 n.

—— Wager of, 65 n.

278 IN DEX.

Law of England, sources and history of, 51, 52 n.

Law Proceedings, Language of, 177, 179 n.

Lawyers, English, character of, 186 n.
formerly Ecclesiastics, 4 n.
Studies of in former times, 4 n. 184, 185.

Lewis XI. of France, his despotic government, 129, 133 n.

Lex Regia, 26, 125, 125 n.

Liberty, favoured by the Law of England, 157.

early opinions in England respecting, 45 n.

Limited Monarchy, 26, 141, 138.

Maxims of the English Law, 20, 20 n.
Military Exercises and Education, 167, 167 n.
Military Tenures, 169 n.

Money, ancient value of, 104 n. 183 n.
Murder, remarkable case of, 203.

Norman Laws, 55 n.

Oath, Coronation, 126, 126 n.
——— Sheriffs’, 81 n.

Judges’, 194, 24 n.
Ordeal, Trial by, 65 n.
Original Compact, 46 n.

Pains and Penalties, bills of, 118 n.

Panel, 86, 87 n.

Parliament, Acts of, their form and language, 59 n. 180 ni. -
Declarations of Law by the respective houses of, 60 n-
History and Constitution of, 55, 55 n. 57 n.
Trial before Parliament and a i Jury, 65 ns

Parliamentum ‘indoctum, 187 n.

Partus sequitur ventrem, 155.

Parvyse, 196, 197 n.

Pastoral habits of the English in former times, 102, 103 n.

Philips Fabian, his writings against the Abolition of Military

Tenures, 166 n.

INDEX. — 279

Prerogative, opinions respecting, 44 n.
Proclamations, law respecting, .60.n.
Protection, writ of, 205 n. ©
Purveyance, 134, 134 n.

Rack, 70, 71 n. 73 n.

Readings, ancient, in the Inns of Court, 184 n.

Rege Inconsulto, writ of, 205 n.

Ranks in England, 104, 106 n.

Responsibility in the Advisers of the Crown, 23 n.

Revolution, Protest of Lord Nottingham, respecting the vacancy
of the Throne by the Abdication of James II. 269.

Salt Gabelle, of in France, 130, 132 n.

Saxon, Laws, 53 n.

Scotland, feudal subjection to the English Crown, 39, 39 n.
Secret Le, in France, 74 n.

Secta, Examination of, 67 n.

Serjeants at Law, antiquities respecting, 189, 192 n. 7
Sheriff, office and duties of, 81, 81 n. 85.

Slavery, 155.

Socage, Guardianship in, 163 n.

Statutes, how made in England, 55, 59 n.

Language of, 180 n.

Tallages, 26 n.

Tallagio non concedendo, Statute of, 59 n.

Taxation arbitrary, history and illegality of, 26, 28n. 136.°°
Temple, description of in time of Henry VI. 178, 178 n.
Theft, Progress of the Law respecting, 172, 172 n.
manifest, 172, 172 n.

Theocracy of the Jews, 27, 27 n.

Torture, Practice of, 70, 7ln. 73.n.

Trial, various forms of, 68 n.

“mode of proceeding in Civil Matters, 89.

280 ) _INDEX.

Trials in Criminal Matters, 92. . ~ 2 ®,
—— anterior and subsequent to the Revolution, 93 n. °

Universities, Education of Lawyers at, 175, 175 n.

Verdict, 93, 93 n.
Villenage, 158 n.

Vills, division of, 79, 79 n.
Visne, 86, 87 n. 89, 101.
Voluntas pro facto, 173 n.

Wapentakes, division of, 79, 79 n.
Wards, 162, 163 n.
Wars, private in England, 170 n.
Witnesses, Trial by, 67 n.
to a deed, joined with the Jury, 117, 117 n.
Writs, History of, 182, 182 n.

a
Yeoman, 104, 106 n.

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